As filed with the Securities and Exchange Commission on April 7, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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MORGAN STANLEY DEAN WITTER & CO.
(Exact name of registrant as specified in its charter)
DELAWARE 36-3145972
(State or other jurisdiction (I.R.S. Employer Identification Number)
of incorporation or organization)
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1585 Broadway
New York, New York 10036
(212) 761-4000
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
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Donald G. Kempf, Jr., Esq.
Executive Vice President, Chief Legal Offices
and Secretary
Morgan Stanley Dean Witter & Co.
1585 Broadway
New York, New York 10036
(212) 761-4000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies To:
Joseph W. Armbrust, Esq. John M. Brandow, Esq.
Brown & Wood LLP Davis Polk & Wardwell
One World Trade Center 450 Lexington Avenue
New York, New York 10048 New York, New York 10017
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Approximate date of commencement of proposed sale to the public: As soon
as practicable after this registration statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, as amended (the "Securities Act"), other than securities offered only
in connection with dividend or interest reinvestment plans, check the following
box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
<TABLE>
CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
Proposed maximum Proposed maximum
Title of each class of securities Amount to offering price aggregate offering Amount of
to be registered be registered per security(1) price (1) registration fee
- ------------------------------------------------------------------------------------------------------------------------------------
Debt Securities....................
Warrants (2).......................
Preferred Stock (3)................ $12,000,000,000(7)(8) 100% $12,000,000,000 $3,168,000
Depositary Shares (4)..............
Purchase Contracts (5).............
Units (6)..........................
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</TABLE>
(1) Estimated solely for purposes of calculating the registration fee.
(2) There are being registered hereby such indeterminate number of Warrants as
may be issued at indeterminate prices. Such Warrants may be issued
together with any Debt Securities or Purchase Contracts or both. Warrants
may be exercised to purchase Debt Securities registered hereby or to
purchase or sell (i) securities of an entity unaffiliated with the
Registrant, a basket of such securities, an index or indices of such
securities or any combination of the above, (ii) currencies or (iii)
commodities.
(3) There are being registered hereby such indeterminate number of shares of
Preferred Stock as may from time to time be issued at indeterminate
prices.
(4) There are being registered hereby such indeterminate number of Depositary
Shares as may be issued in the event that the Registrant elects to offer
fractional or multiple interests in shares of the Preferred Stock
registered hereby.
(5) There are being registered hereby such indeterminate number of Purchase
Contracts as may be issued at indeterminate prices. Such Purchase
Contracts may be issued together with any Debt Securities or Warrants or
both. Purchase Contracts may require the holders thereof to purchase or
sell (i) securities of an entity unaffiliated with the Registrant, a
basket of such securities, an index or indices of such securities or any
combination of the above, (ii) currencies or (iii) commodities.
(6) There are being registered hereby such indeterminate number of Units as
may be issued at indeterminate prices. Units may consist of one or more
Purchase Contracts, Warrants and Debt Securities or any combination of the
above.
(7) This registration statement also relates to offers and sales of Debt
Securities, Warrants, Preferred Stock, Depositary Shares, Purchase
Contracts and Units (collectively, "Securities") in connection with
market-making transactions by and through affiliates of the Registrant
(subject, with respect to Preferred Stock and Depositary Shares, to
approval of the New York Stock Exchange, Inc. in connection with
market-making transactions by and through Morgan Stanley & Co.
Incorporated and Dean Witter Reynolds Inc.).
(8) Or, if any Debt Securities are issued at an original issue discount, such
greater amount as shall result in aggregate net proceeds not in excess of
$12,000,000,000 to the Registrant or, if any Securities are issued with an
offering price payable in a foreign currency, such amount as shall result
in an aggregate initial offering price equivalent to $12,000,000,000 at
the time of initial offering.
The Registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act or until the registration statement shall become effective
on such date as the Securities and Exchange Commission (the "Commission"),
acting pursuant to Section 8(a), may determine.
Pursuant to Rule 429 of the General Rules and Regulations under the
Securities Act, the Prospectus which is a part of this registration statement
is a combined Prospectus relating also to $5,616,689,327 of securities
registered and remaining unissued under registration statement no. 333-75289
previously filed by the registrant and declared effective by the Commission.
===============================================================================
<PAGE>
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN
OFFER TO SELL THESE SECURITIES AND WE ARE NOT SOLICITING OFFERS TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
PROSPECTUS (Subject to Completion, Issued April 7, 2000)
$17,616,689,327
Morgan Stanley Dean Witter & Co.
DEBT SECURITIES
UNITS
WARRANTS
PURCHASE CONTRACTS
PREFERRED STOCK
-----------------------
We, Morgan Stanley Dean Witter & Co., may offer from time to time debt
securities, units, warrants, purchase contracts and preferred stock. This
prospectus describes the general terms of these securities and the general
manner in which we will offer the securities. The specific terms of any
securities we offer will be included in a supplement to this prospectus. The
prospectus supplement will also describe the specific manner in which we will
offer the securities.
-----------------------
The Securities and Exchange Commission and state securities regulators
have not approved or disapproved these securities, or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
-----------------------
MORGAN STANLEY DEAN WITTER
, 2000
<PAGE>
You should rely only on the information we incorporate by reference or provide
in this prospectus or the relevant prospectus supplement. This prospectus
together with the prospectus supplement dated , 2000, our Annual Report
on Form 10-K for the fiscal year ended November 30, 1999, pages 4 and 22
through 90 from our 1999 Annual Report to Shareholders, pages 4 through 15
(excluding the material included under the heading the "Report of the
Compensation Committee on Executive Compensation") and 19 (beginning at the
heading "Section 16(a) Beneficial Ownership Reporting Compliance") through 20
from the Proxy Statement for our 2000 Annual Meeting of Stockholders and our
Current Reports on Form 8-K dated December 20, 1999 (3 reports) and March 23,
2000 constitute the Listing Particulars for the purposes of the London Stock
Exchange. We have not authorized anyone else to provide you with different or
additional information. We are not making an offer of these securities in any
state where the offer is not permitted. Except as we indicate under the
headings "Morgan Stanley Dean Witter" and "Use of Proceeds," the terms "MSDW,"
"we," "us," and "our" refer to Morgan Stanley Dean Witter & Co.
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SUMMARY
We, Morgan Stanley Dean Witter & Co., may offer any of the following
securities: debt securities, units, warrants, purchase contracts and preferred
stock. The following summary describes these securities in general terms only.
You should read the summary together with the more detailed information
contained in the rest of this prospectus and the applicable prospectus
supplement.
Debt Securities........................ Our debt securities may be senior or
subordinated in priority of payment.
We will provide a prospectus
supplement that describes the ranking,
whether senior or subordinated, the
specific designation, the aggregate
principal amount, the purchase price,
the maturity, the redemption terms,
the interest rate or manner of
calculating the interest rate, the
time of payment of interest, if any,
the terms for any conversion or
exchange, including the terms relating
to the adjustment of any conversion or
exchange mechanism, the listing, if
any, on a securities exchange and any
other specific terms of the debt
securities.
The senior and subordinated debt
securities will be issued under
separate indentures between us and a
U.S. banking institution as trustee.
Neither of the indentures that govern
our debt securities limits the amount
of additional indebtedness that we or
any of our subsidiaries may incur. We
have summarized the general features
of the indentures under the heading
"Description of Debt Securities." We
encourage you to read the indentures,
which are exhibits to our registration
statement No. 333- .
Units.................................. We may sell any combination of our debt
securities, warrants and purchase
contracts together as units. In a
prospectus supplement, we will
describe the particular combination of
purchase contracts, warrants and debt
securities constituting any units and
any other specific terms of the units.
Warrants............................... We may sell two types of warrants:
o warrants to purchase our debt
securities, or
o universal warrants to purchase or
sell (1) securities of an entity
not affiliated with us, a basket of
these securities, an index or
indices of these securities or any
combination of the above, (2)
currencies or (3) commodities.
In a prospectus supplement, we will
specify the type of warrant and inform
you of the exercise price and other
specific terms of the warrants,
including whether our or your
obligations, if any, under any
universal warrants may be satisfied by
delivering or purchasing the
underlying securities, currencies or
commodities, or their cash value.
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Purchase Contracts..................... We may sell purchase contracts
requiring the holders to purchase or
sell (1) securities of an entity not
affiliated with us, a basket of these
securities, an index or indices of
these securities or any combination of
the above, (2) currencies or (3)
commodities. In a prospectus
supplement, we will describe the
specific terms of the purchase
contracts, including whether we will
satisfy our obligations, if any, or
you will satisfy your obligations, if
any, under any purchase contracts by
delivering the underlying securities,
currencies or commodities or their
cash value.
Form................................... We may issue debt securities, units,
warrants and purchase contracts in
fully registered form or in bearer
form and, in each case, in definitive
form or global form.
Preferred Stock........................ We may sell our preferred stock, par
value $0.01 per share, in one or more
series. In a prospectus supplement, we
will describe the specific
designation, the aggregate number of
shares offered, the dividend rate or
manner of calculating the dividend
rate, the dividend periods or manner
of calculating the dividend periods,
the stated value of the shares of the
series, the voting rights of the
shares of the series, whether or not
and on what terms the shares of the
series will be convertible or
exchangeable, whether and on what
terms we can redeem the shares of the
series, whether we will offer
depositary shares representing shares
of the series and if so, the fraction
or multiple of a share of preferred
stock represented by each depositary
share, whether we will list the
preferred stock or depositary shares
on a securities exchange and any other
specific terms of the series of
preferred stock.
Terms Specified in
Prospectus Supplements................. When we decide to sell particular
securities, we will prepare a
prospectus supplement describing the
securities offering and the specific
terms of the securities. You should
carefully read this prospectus and the
applicable prospectus supplement.
We will offer our debt securities,
warrants, purchase contracts, units
and preferred stock to investors on
terms determined by market and other
conditions. Our securities may be sold
for U.S. dollars or foreign currency.
Principal of and any premium or
interest on debt securities and cash
amounts payable under warrants or
purchase contracts may be payable in
U.S. dollars or foreign currency, as
we specifically designate in the
related prospectus supplement.
In any prospectus supplement we
prepare, we will provide the name of
and compensation to each dealer,
underwriter or agent, if any, involved
in the sale of the securities being
offered and the managing underwriters
for any securities sold to or through
underwriters. Any underwriters,
including managing underwriters,
dealers or agents in the United
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States will include Morgan Stanley &
Co. Incorporated and/or Dean Witter
Reynolds Inc. and any outside the
United States will include Morgan
Stanley & Co. International Limited or
other affiliates of ours.
Structural Subordination; Our Receipt
of Cash from Our Subsidiaries
May be Restricted...................... The securities are unsecured senior or
subordinated obligations of ours, but
our assets consist primarily of equity
in our subsidiaries. As a result, our
ability to make payments on our debt
securities and/or pay dividends on our
preferred stock depends upon our
receipt of dividends, loan payments
and other funds from our subsidiaries.
In addition, if any of our
subsidiaries becomes insolvent, the
direct creditors of that subsidiary
will have a prior claim on its assets,
and our rights and the rights of our
creditors, including your rights as an
owner of our debt securities, units,
warrants, purchase contracts or
preferred stock, will be subject to
that prior claim, unless we are also a
direct creditor of that subsidiary.
This subordination of creditors of a
parent company to prior claims of
creditors of its subsidiaries is
commonly referred to as structural
subordination.
In addition, various statutes and
regulations restrict some of our
subsidiaries from paying dividends or
making loans or advances to us. These
restrictions could prevent those
subsidiaries from paying the cash to
us that we need in order to pay you.
These restrictions include:
o the net capital requirements under
the Securities Exchange Act of
1934, and the rules of some
exchanges and other regulatory
bodies, which apply to some of our
principal subsidiaries, such as
Morgan Stanley & Co. Incorporated,
Morgan Stanley & Co. International
Limited and Dean Witter Reynolds
Inc., and
o banking regulations, which apply
to Greenwood Trust Company, a
Delaware chartered bank, and other
bank subsidiaries of ours.
Market-making by Our Affiliates........ Following the initial distribution of
an offering of securities, Morgan
Stanley & Co. Incorporated, Morgan
Stanley & Co. International Limited,
Dean Witter Reynolds Inc. and other
affiliates of ours may offer and sell
those securities in the course of
their businesses as broker-dealers,
subject, in the case of preferred
stock and depositary shares, to
obtaining any necessary approval of
the New York Stock Exchange, Inc. for
any of these offers and sales our
United States affiliates may make.
Morgan Stanley & Co. Incorporated,
Morgan Stanley & Co. International
Limited, Dean Witter Reynolds Inc. and
other affiliates of ours may act as a
principal or agent in these
transactions. This prospectus and
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the applicable prospectus supplement
will also be used in connection with
those transactions. Sales in any of
those transactions will be made at
varying prices related to prevailing
market prices and other circumstances
at the time of sale.
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WHERE YOU CAN FIND MORE INFORMATION
We file annual reports, proxy statements and other information with the
SEC. You may read and copy any document we file at the SEC's public reference
room at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549 or at its
Regional Offices located at Suite 1400, Citicorp Center, 500 West Madison
Street, Chicago, Illinois 60661 and at Seven World Trade Center, 13th Floor,
New York, New York 10048. Please call the SEC at 1-800-SEC-0300 for further
information on the public reference room. In addition, the SEC maintains a
Website that contains reports, proxy statements and other information that we
electronically file. The address of the SEC's Website is http://www.sec.gov.
This prospectus is part of a registration statement we filed with the SEC.
This prospectus omits some information contained in the registration statement
in accordance with SEC rules and regulations. You should review the information
and exhibits in the registration statement for further information on us and
our consolidated subsidiaries and the securities we are offering. Statements in
this prospectus concerning any document we filed as an exhibit to the
registration statement or that we otherwise filed with the SEC are not intended
to be comprehensive and are qualified by reference to these filings. You should
review the complete document to evaluate these statements.
Our common stock, par value $0.01 per share, is listed on the New York
Stock Exchange, Inc. and the Pacific Exchange, Inc. under the symbol "MWD." You
may inspect reports, proxy statements and other information concerning us and
our consolidated subsidiaries at the offices of the New York Stock Exchange,
Inc., 20 Broad Street, New York, New York 10005, and the Pacific Exchange,
Inc., 301 Pine Street, San Francisco, California 94104 or 233 South Beaudry
Avenue, Los Angeles, California 90012.
The SEC allows us to incorporate by reference much of the information we
file with them, which means that we can disclose important information to you
by referring you to those publicly available documents. The information that we
incorporate by reference in this prospectus is considered to be part of this
prospectus. Because we are incorporating by reference future filings with the
SEC, this prospectus is continually updated and those future filings may modify
or supersede some of the information included or incorporated in this
prospectus. This means that you must look at all of the SEC filings that we
incorporate by reference to determine if any of the statements in this
prospectus or in any document previously incorporated by reference have been
modified or superseded. This prospectus incorporates by reference the documents
listed below and any future filings we make with the SEC under Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until we complete our
offering of the securities to be issued under the registration statement or, if
later, the date on which any of our affiliates cease offering and selling these
securities:
(a) Annual Report on Form 10-K for the fiscal year ended November 30,
1999; and
(b) Current Reports on Form 8-K dated December 20, 1999 (3 reports) and
March 23, 2000.
You can request a copy of these documents, excluding exhibits, at no cost,
by writing or telephoning us at the following address:
Morgan Stanley Dean Witter & Co.
1585 Broadway
New York, New York 10036
Attention: Investor Relations
(212) 762-8131
We have not submitted and will not submit any document incorporated or
deemed to be incorporated by reference in this prospectus for review under the
clearance procedures of the Commission des Operations de Bourse of the Paris
Bourse, except as required in connection with the listing of any securities on
the Paris Bourse.
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CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
AND EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth our consolidated ratios of earnings to
fixed charges and earnings to fixed charges and preferred stock dividends for
the periods indicated. The fiscal year information for 1996 and 1995 combines
the historical financial information of Dean Witter, Discover & Co. for the
years ended December 31, 1996 and 1995 with the historical financial
information of Morgan Stanley Group Inc. for the fiscal years ended November
30, 1996 and 1995. Subsequent to the merger between Dean Witter, Discover & Co.
and Morgan Stanley Group Inc., in May 1997, we adopted a fiscal year end of
November 30. The fiscal year information for 1999, 1998 and 1997 reflects the
change in fiscal year end.
Fiscal Year
--------------------------------
1999 1998 1997 1996 1995
---- ---- ---- ---- ----
Ratio of earnings to fixed charges........... 1.7 1.4 1.4 1.3 1.3
Ratio of earnings to fixed charges and
preferred stock dividends................. 1.7 1.4 1.4 1.3 1.3
For purposes of calculating the ratio of earnings to fixed charges and the
ratio of earnings to fixed charges and preferred stock dividends, earnings are
the sum of:
o pre-tax income;
o fixed charges; and
o amortization of capitalized interest;
less:
o capitalized interest.
For purposes of calculating both ratios, fixed charges are the sum of:
o interest expensed and capitalized;
o amortized premiums, discounts and capitalized expenses related to
indebtedness; and
o our estimate of the interest within rental expenses.
Additionally, for purposes of calculating the ratio of earnings to fixed
charges and preferred stock dividends, preferred stock dividends are included
in the denominator of the ratio on a pre-tax basis.
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MORGAN STANLEY DEAN WITTER
Morgan Stanley Dean Witter & Co. is a preeminent global financial services
firm that maintains leading market positions in each of its three primary
businesses--securities, asset management and credit services. MSDW combines
global strength in investment banking and institutional sales and trading with
strength in providing full-service and on-line brokerage services, investment
and global asset management services and, primarily through its Discover(R)
Card brand, quality consumer credit products. MSDW provides its products and
services to a large and diversified group of clients and customers, including
corporations, governments, financial institutions and individuals.
As of November 30, 1999, MSDW had the second largest financial advisor
sales organization in the United States and had 12,674 professional financial
advisors and 475 securities branch offices globally. MSDW also had one of the
largest global asset management operations of any full-service securities firm,
with total assets under management or supervision of $425 billion. In addition,
based on its approximately 38.5 million general purpose credit card accounts as
of November 30, 1999, MSDW was one of the nation's largest credit card issuers,
with the largest proprietary merchant and cash access network in the United
States.
MSDW's securities businesses include securities underwriting and
distribution; financial advisory services, including advice on mergers and
acquisitions, restructurings, real estate and project finance; sales, trading
and market-making activities in equity and fixed income securities, foreign
exchange, commodities and derivatives, including proprietary trading and
arbitrage activities and securities lending; full-service and on-line brokerage
services for individual investors and financial advisory services for high net
worth clients; and principal investing, including private equity activities.
MSDW's asset management businesses include asset management products and
services for individual investors, primarily through Morgan Stanley Dean Witter
Advisors and Van Kampen Investments; and global asset and portfolio management
for institutional investors, primarily through Morgan Stanley Dean Witter
Investment Management and Miller Anderson & Sherrerd. MSDW's credit services
businesses include the Discover(R) Card, other proprietary general purpose
credit cards and the Morgan Stanley Dean Witter Card(SM) and the
Discover/NOVUS(R) Network, a proprietary network of merchant and cash access
locations.
MSDW believes that technological advancements on the Internet and the
growth of electronic commerce will continue to present both challenges and
opportunities to MSDW and could lead to significant changes and innovations.
MSDW's initiatives in this area have included Web-enabling existing businesses
and enhancing client communication and access to information and services. For
example, ClientLink(SM), the focal point of MSDW's institutional client
connectivity strategy, provides clients with a private, secure Internet
platform that delivers browser-based information, products and services across
many of MSDW's business units. MSDW has also been making investments or
otherwise participating in alternative trading systems, electronic
communication networks and related businesses or technologies.
MSDW conducts its business from its headquarters in New York City, its
regional offices and branches throughout the United States, and its principal
offices in London, Tokyo, Hong Kong and other financial centers throughout the
world. At November 30, 1999, MSDW had 55,288 employees. MSDW is a combination
of Dean Witter, Discover & Co. and Morgan Stanley Group Inc. and was formed in
a merger of equals that was effected on May 31, 1997. MSDW was originally
incorporated under the laws of the State of Delaware in 1981, and its
predecessor companies date back to 1924.
MSDW's principal executive offices are at 1585 Broadway, New York, New
York 10036, and its telephone number is (212) 761-4000. Under this heading and
"Use of Proceeds" below, the term "MSDW" includes Morgan Stanley Dean Witter &
Co. and its consolidated subsidiaries.
USE OF PROCEEDS
MSDW will use the net proceeds from the sale of the securities we offer by
this prospectus for general corporate purposes or for any other purposes
described in the applicable prospectus supplement. General corporate purposes
may include additions to working capital, the redemption of outstanding
preferred stock, the repurchase of outstanding common stock and the repayment
of indebtedness. MSDW anticipates that it will raise additional funds from time
to
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time through equity or debt financing, including borrowings under revolving
credit agreements, to finance its businesses worldwide.
DESCRIPTION OF DEBT SECURITIES
Debt May Be Senior or Subordinated
We may issue senior or subordinated debt securities. The senior debt
securities and, in the case of debt securities in bearer form, any coupons to
these securities, will constitute part of our senior debt, will be issued under
our Senior Debt Indenture, as defined below, and will rank on a parity with all
of our other unsecured and unsubordinated debt. The subordinated debt
securities and any coupons will constitute part of our subordinated debt, will
be issued under our Subordinated Debt Indenture, as defined below, and will be
subordinate and junior in right of payment, as set forth in the Subordinated
Debt Indenture, to all of our "senior indebtedness," which is defined in our
Subordinated Debt Indenture. If this prospectus is being delivered in
connection with a series of subordinated debt securities, the accompanying
prospectus supplement or the information we incorporate in this prospectus by
reference will indicate the approximate amount of senior indebtedness
outstanding as of the end of the most recent fiscal quarter. We refer to our
Senior Debt Indenture and our Subordinated Debt Indenture individually as an
"indenture" and collectively as the "indentures."
We have summarized below the material provisions of the indentures and the
debt securities, or indicated which material provisions will be described in
the related prospectus supplement. These descriptions are only summaries, and
each investor should refer to the applicable indenture, which describes
completely the terms and definitions summarized below and contains additional
information regarding the debt securities. Where appropriate, we use
parentheses to refer you to the particular sections of the applicable
indenture. Any reference to particular sections or defined terms of the
applicable indenture in any statement under this heading qualifies the entire
statement and incorporates by reference the applicable section or definition
into that statement. The indentures are substantially identical, except for the
provisions relating to MSDW's negative pledge, which is included in the Senior
Debt Indenture only, and to subordination.
Payments
We may issue debt securities from time to time in one or more series. The
debt securities may be denominated and payable in U.S. dollars or foreign
currencies. We may also issue debt securities, from time to time, with the
principal amount or interest payable on any relevant payment date to be
determined by reference to one or more currency exchange rates, securities or
baskets of securities, commodity prices or indices. Holders of these types of
debt securities will receive payments of principal or interest that depend upon
the value of the applicable currency, security or basket of securities,
commodity or index on the relevant payment dates.
Debt securities may bear interest at a fixed rate, which may be zero, or a
floating rate. Debt securities bearing no interest or interest at a rate that
at the time of issuance is below the prevailing market rate may be sold at a
discount below their stated principal amount.
Terms Specified in Prospectus Supplement
The prospectus supplement will contain, where applicable, the following
terms of and other information relating to any offered debt securities:
o classification as senior or subordinated debt securities and the
specific designation;
o aggregate principal amount, purchase price and denomination;
o currency in which the debt securities are denominated and/or in which
principal, and premium, if any, and/or interest, if any, is payable;
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o date of maturity;
o the interest rate or rates or the method by which the calculation
agent will determine the interest rate or rates, if any;
o the interest payment dates, if any;
o the place or places for payment of the principal of and any premium
and/or interest on the debt securities;
o any repayment, redemption, prepayment or sinking fund provisions,
including any redemption notice provisions;
o whether we will issue the debt securities in registered form or
bearer form or both and, if we are offering debt securities in bearer
form, any restrictions applicable to the exchange of one form for
another and to the offer, sale and delivery of those debt securities
in bearer form;
o whether we will issue the debt securities in definitive form and under
what terms and conditions;
o the terms on which holders of the debt securities may convert or
exchange these securities into or for stock or other securities of an
entity unaffiliated with us, any specific terms relating to the
adjustment of the conversion or exchange feature and the period
during which the holders may make the conversion or exchange;
o information as to the methods for determining the amount of principal
or interest payable on any date and/or the currencies, securities or
baskets of securities, commodities or indices to which the amount
payable on that date is linked;
o any agents for the debt securities, including trustees, depositories,
authenticating or paying agents, transfer agents or registrars;
o any applicable United States federal income tax consequences,
including, but not limited to:
o whether and under what circumstances we will pay additional
amounts on debt securities held by a person who is not a U.S.
person for any tax, assessment or governmental charge withheld
or deducted and, if so, whether we will have the option to
redeem those debt securities rather than pay the additional
amounts;
o tax considerations applicable to any discounted debt securities
or to debt securities issued at par that are treated as having
been issued at a discount for United States federal income tax
purposes;
o tax considerations applicable to any debt securities denominated
and payable in foreign currencies; and
o any other specific terms of the debt securities, including any
additional events of default or covenants, and any terms required by
or advisable under applicable laws or regulations.
Registration and Transfer of Debt Securities
Holders may present debt securities for exchange, and holders of
registered debt securities may present these securities for transfer, in the
manner, at the places and subject to the restrictions stated in the debt
securities and described in the applicable prospectus supplement. We will
provide these services without charge except for any tax or other governmental
charge payable in connection with these services and subject to any limitations
provided in the applicable indenture.
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Holders may transfer debt securities in bearer form and the related
coupons, if any, by delivery to the transferee. If any of the securities are
held in global form, the procedures for transfer of interests in those
securities will depend upon the procedures of the depositary for those global
securities. See "Forms of Securities."
Indentures
Debt securities that will be senior debt will be issued under an Amended
and Restated Senior Indenture dated as of May 1, 1999 between MSDW and The
Chase Manhattan Bank, as trustee. We call that indenture, as it may be
supplemented from time to time, the Senior Debt Indenture. Debt securities that
will be subordinated debt will be issued under an Amended and Restated
Subordinated Indenture dated as of May 1, 1999 between MSDW and Bank One Trust
Company, N.A., as successor to The First National Bank of Chicago, as trustee.
We call that indenture, as it may be supplemented from time to time, the
Subordinated Debt Indenture. We refer to The Chase Manhattan Bank and Bank One
Trust Company, N.A., individually as a "trustee" and collectively as the
"trustees."
Subordination Provisions
Holders of subordinated debt securities should recognize that contractual
provisions in the Subordinated Debt Indenture may prohibit us from making
payments on these securities. Subordinated debt securities are subordinate and
junior in right of payment, to the extent and in the manner stated in the
Subordinated Debt Indenture, to all of our senior indebtedness. The
Subordinated Debt Indenture defines senior indebtedness as obligations of, or
guaranteed or assumed by, MSDW for borrowed money or evidenced by bonds,
debentures, notes or other similar instruments, and amendments, renewals,
extensions, modifications and refundings of any of that indebtedness or of
those obligations. Nonrecourse obligations, the subordinated debt securities
and any other obligations specifically designated as being subordinate in right
of payment to senior indebtedness are not senior indebtedness as defined under
the Subordinated Debt Indenture. (Subordinated Debt Indenture, Section 1.01).
The Subordinated Debt Indenture provides that, unless all principal of and
any premium or interest on the senior indebtedness has been paid in full, or
provision has been made to make these payments in full, no payment of principal
of, or any premium or interest on, any subordinated debt securities may be made
in the event:
o of any insolvency or bankruptcy proceedings, or any receivership,
liquidation, reorganization or other similar proceedings involving us
or a substantial part of our property;
o that (a) a default has occurred in the payment of principal, any
premium, interest or other monetary amounts due and payable on any
senior indebtedness or (b) there has occurred any other event of
default concerning senior indebtedness, that permits the holder or
holders of the senior indebtedness to accelerate the maturity of the
senior indebtedness, with notice or passage of time, or both, and
that event of default has continued beyond the applicable grace
period, if any, and that default or event of default has not been
cured or waived or has not ceased to exist; or
o that the principal of and accrued interest on any subordinated debt
securities have been declared due and payable upon an event of
default as defined under the Subordinated Debt Indenture and that
declaration has not been rescinded and annulled as provided under the
Subordinated Debt Indenture. (Subordinated Debt Indenture, Section
13.01)
Covenants Restricting Pledges, Mergers and Other Significant Corporate Actions
Negative Pledge. Because we are a holding company, our assets consist
primarily of the securities of our subsidiaries. The negative pledge provisions
of the Senior Debt Indenture limit our ability to pledge some of these
securities. The Senior Debt Indenture provides that we will not, and will not
permit any subsidiary to, create, assume, incur or guarantee any indebtedness
for borrowed money that is secured by a pledge, lien or other encumbrance
except for liens specifically permitted by the Senior Debt Indenture on:
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(1) the voting securities of Morgan Stanley & Co. Incorporated,
Morgan Stanley & Co. International Limited, Dean Witter Reynolds Inc.,
Greenwood Trust Company, or any subsidiary succeeding to any substantial
part of the business now conducted by any of those corporations, which we
refer to collectively as the "principal subsidiaries," or
(2) the voting securities of a subsidiary that owns, directly or
indirectly, the voting securities of any of the principal subsidiaries,
other than directors' qualifying shares,
without making effective provisions so that the debt securities issued under
the Senior Debt Indenture will be secured equally and ratably with indebtedness
so secured.
For these purposes, "subsidiary" means any corporation, partnership or
other entity of which at the time of determination we own or control directly
or indirectly more than 50% of the shares of the voting stock or equivalent
interest, and "voting securities" means stock of any class or classes having
general voting power under ordinary circumstances to elect a majority of the
board of directors, managers or trustees of the relevant subsidiary, other than
stock that carries only the conditional right to vote upon the happening of an
event, whether or not that event has happened. (Senior Debt Indenture, Section
3.06)
The Subordinated Debt Indenture does not include negative pledge
provisions.
Merger, Consolidation, Sale, Lease or Conveyance. Each indenture provides
that we will not merge or consolidate with any other person and will not sell,
lease or convey all or substantially all of our assets to any other person,
unless:
o we will be the continuing corporation; or
o the successor corporation or person that acquires all or substantially
all of our assets:
o will be a corporation organized under the laws of the United
States, a state of the United States or the District of Columbia;
and
o will expressly assume all of our obligations under the indenture
and the debt securities issued under the indenture; and
o immediately after the merger, consolidation, sale, lease or
conveyance, we, that person or that successor corporation will not be
in default in the performance of the covenants and conditions of the i
ndenture applicable to us. (Indentures, Section 9.01)
Absence of Protections against All Potential Actions of MSDW. There are no
covenants or other provisions in the indentures that would afford holders of
debt securities additional protection in the event of a recapitalization
transaction, a change of control of MSDW or a highly leveraged transaction. The
merger covenant described above would only apply if the recapitalization
transaction, change of control or highly leveraged transaction were structured
to include a merger or consolidation of MSDW or a sale, lease or conveyance of
all or substantially all of our assets. However, we may provide specific
protections, such as a put right or increased interest, for particular debt
securities, which we would describe in the applicable prospectus supplement.
Events of Default
The indentures provide holders of debt securities with remedies if we fail
to perform specific obligations, such as making payments on the debt securities
or other indebtedness, or if we become bankrupt. Holders should review these
provisions and understand which of our actions trigger an event of default and
which actions do not. Each indenture permits the issuance of debt securities in
one or more series, and, in many cases, whether an event of default has
occurred is determined on a series by series basis.
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An event of default is defined under each indenture, with respect to any
series of debt securities issued under that indenture, as being:
o default in payment of any principal of the debt securities of that
series, either at maturity or upon any redemption, by declaration or
otherwise;
o default for 30 days in payment of any interest on any debt securities
of that series;
o default for 60 days after written notice in the observance or
performance of any other covenant or agreement in the debt securities
of that series or the related indenture, other than a covenant
included in that indenture solely for the benefit of a different
series of debt securities;
o events of bankruptcy, insolvency or reorganization;
o failure to make any payment at maturity, including any applicable
grace period, on other indebtedness in an amount in excess of
$10,000,000 and continuance of that failure for a period of 30 days
after written notice of the failure to us by the applicable trustee,
or to us and the applicable trustee by the holders of not less than
25% in principal amount of the outstanding debt securities, treated
as one class, issued under the indenture;
o default with respect to any other indebtedness, which default results
in the acceleration of indebtedness in an amount in excess of
$10,000,000 without the indebtedness having been discharged or the
acceleration having been cured, waived, rescinded or annulled for a
period of 30 days after written notice of the acceleration to us by
the applicable trustee, or to us and the applicable trustee by the
holders of not less than 25% in principal amount of the outstanding
debt securities, treated as one class, issued under the indenture; or
o any other event of default provided in the supplemental indenture
under which that series of debt securities is issued.
For purposes of the fifth and sixth clauses above, indebtedness means
obligations of, or guaranteed or assumed by, MSDW for borrowed money or
evidenced by bonds, debentures, notes or other similar instruments, but does
not include non-recourse obligations. In addition, if a failure, default or
acceleration referred to in the fifth and sixth clauses above ceases or is
cured, waived, rescinded or annulled, then the event of default under the
applicable indenture caused by that failure, default or acceleration will also
be considered cured. (Indentures, Section 5.01)
Acceleration of Debt Securities Upon an Event of Default. Each indenture
provides that:
o if an event of default due to the default in payment of principal of,
or any premium or interest on, any series of debt securities issued
under that indenture, or due to the default in the performance or
breach of any other covenant or warranty of MSDW applicable to the
debt securities of that series but not applicable to all outstanding
debt securities issued under that indenture occurs and is continuing,
either the trustee or the holders of not less than 25% in aggregate
principal amount of the outstanding debt securities of each affected
series, voting as one class, by notice in writing to MSDW, may
declare the principal of all debt securities of each affected series
and interest accrued thereon to be due and payable immediately; and
o if an event of default due to a default in the performance of any
other of the covenants or agreements in that indenture applicable to
all outstanding debt securities issued under that indenture or due to
specified events of bankruptcy, insolvency or reorganization of MSDW,
occurs and is continuing, either the trustee or the holders of not
less than 25% in aggregate principal amount of all outstanding debt
securities issued under that indenture, voting as one class, by
notice in writing to MSDW may declare the principal of all those debt
securities and interest accrued thereon to be due and payable
immediately. (Indentures, Section 5.01)
Annulment of Acceleration and Waiver of Defaults. In some circumstances,
if any and all events of default under the indenture, other than the
non-payment of the principal of the securities that has become due as a result
of an acceleration, have been cured, waived or otherwise remedied, then the
holders of a majority in aggregate principal
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amount of all series of outstanding debt securities affected, voting as one
class, may annul past declarations of acceleration of or waive past defaults of
the debt securities. (Indentures, Sections 5.01 and 5.10)
Indemnification of Trustee for Actions Taken on Your Behalf. Each
indenture contains a provision entitling the trustee, subject to the duty of
the trustee during a default to act with the required standard of care, to be
indemnified by the holders of debt securities issued under that indenture
before proceeding to exercise any right or power at the request of holders.
(Indentures, Section 6.02) Subject to these provisions and some other
limitations, the holders of a majority in aggregate principal amount of each
series of outstanding debt securities of each affected series, voting as one
class, may direct the time, method and place of conducting any proceeding for
any remedy available to the trustee, or exercising any trust or power conferred
on the trustee. (Indentures, Section 5.09)
Limitation on Actions by You as an Individual Holder. Each indenture
provides that no individual holder of debt securities may institute any action
against us under that indenture, except actions for payment of overdue
principal and interest, unless the following actions have occurred:
o the holder must have previously given written notice to the trustee of
the continuing default;
o the holders of not less than 25% in aggregate principal amount of the
outstanding debt securities of each affected series, treated as one
class, must have (1) requested the trustee to institute that action
and (2) offered the trustee reasonable indemnity;
o the trustee must have failed to institute that action within 60 days
after receipt of the request referred to above; and
o the holders of a majority in principal amount of the outstanding debt
securities of each affected series, voting as one class, must not
have given directions to the trustee inconsistent with those of the
holders referred to above. (Indentures, Sections 5.06 and 5.09)
Each indenture contains a covenant that we will file annually with the
trustee a certificate of no default or a certificate specifying any default that
exists. (Indentures, Section 3.05)
Discharge, Defeasance and Covenant Defeasance
We have the ability to eliminate most or all of our obligations on any
series of debt securities prior to maturity if we comply with the following
provisions. (Indentures, Section 10.01)
Discharge of Indenture. We may discharge all of our obligations, other
than as to transfers and exchanges, under the relevant indenture after we have:
o paid or caused to be paid the principal of and interest on all of the
outstanding debt securities in accordance with their terms;
o delivered to the applicable trustee for cancellation all of the
outstanding debt securities; or
o irrevocably deposited with the applicable trustee cash or, in the case
of a series of debt securities payable only in U.S. dollars, U.S.
government obligations in trust for the benefit of the holders of any
series of debt securities issued under the Indenture that have either
become due and payable, or are by their terms due and payable, or are
scheduled for redemption, within one year, in an amount certified to
be sufficient to pay on each date that they become due and payable,
the principal of and interest on, and any mandatory sinking fund
payments for, those debt securities, except that the deposit of cash
or U.S. government obligations for the benefit of holders of a series
of debt securities that are due and payable, or are scheduled for
redemption, within one year will discharge obligations under the
relevant indenture relating only to that series of debt securities.
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Defeasance of a Series of Securities at Any Time. We may also discharge
all of our obligations, other than as to transfers and exchanges, under any
series of debt securities at any time, which we refer to as defeasance.
We may be released with respect to any outstanding series of debt
securities from the obligations imposed by Sections 3.06 (in the case of the
Senior Debt Indenture) and 9.01, which sections contain the covenants described
above limiting liens and consolidations, mergers, asset sales and leases, and
elect not to comply with those sections without creating an event of default.
Discharge under those procedures is called "covenant defeasance."
Defeasance or covenant defeasance may be effected only if, among other
things:
o we irrevocably deposit with the relevant trustee cash or, in the case
of debt securities payable only in U.S. dollars, U.S. government
obligations, as trust funds in an amount certified to be sufficient
to pay on each date that they become due and payable, the principal
of and interest on, and any mandatory sinking fund payments for, all
outstanding debt securities of the series being defeased;
o we deliver to the relevant trustee an opinion of counsel to the effect
that:
o the holders of the series of debt securities being defeased will
not recognize income, gain or loss for United States federal
income tax purposes as a result of the defeasance or covenant
defeasance; and
o the defeasance or covenant defeasance will not otherwise alter
those holders' United States federal income tax treatment of
principal and interest payments on the series of debt securities
being defeased; in the case of a defeasance, this opinion must
be based on a ruling of the Internal Revenue Service or a change
in United States federal income tax law occurring after the date
of this prospectus, since that result would not occur under
current tax law; and
o in the case of the Subordinated Debt Indenture:
o no event or condition will exist that, under the provisions
described under "--Subordination Provisions" above, would
prevent us from making payments of principal or interest on the
subordinated debt securities at the date of the irrevocable
deposit referred to above or at any time during the period
ending on the 91st day after that deposit date; and
o we deliver to the trustee for the Subordinated Debt Indenture an
opinion of counsel to the effect that (i) the trust funds will
not be subject to any rights of holders of senior indebtedness
and (ii) after the 91st day following the deposit, the trust
funds will not be subject to any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors'
rights generally, except that if a court were to rule under any
of those laws in any case or proceeding that the trust funds
remained our property, then the relevant trustee and the holders
of the subordinated debt securities would be entitled to some
enumerated rights as secured creditors in the trust funds.
(Subordinated Debt Indenture, Section 10.01)
Modification of the Indentures
Modification without Consent of Holders. We and the relevant trustee may
enter into supplemental indentures without the consent of the holders of debt
securities issued under a particular indenture to:
o secure any debt securities;
o evidence the assumption by a successor corporation of our obligations;
o add covenants for the protection of the holders of debt securities;
o cure any ambiguity or correct any inconsistency;
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o establish the forms or terms of debt securities of any series; or
o evidence the acceptance of appointment by a successor trustee.
(Indentures, Section 8.01)
Modification with Consent of Holders. We and the trustee, with the consent
of the holders of not less than a majority in aggregate principal amount of
each affected series of outstanding debt securities, voting as one class, may
add any provisions to, or change in any manner or eliminate any of the
provisions of, the indenture or modify in any manner the rights of the holders
of those debt securities. However, we and the trustee may not make any of the
following changes to any outstanding debt security without the consent of each
potentially affected holder:
o extend the final maturity of the principal;
o reduce the principal amount;
o reduce the rate or extend the time of payment of interest;
o reduce any amount payable on redemption;
o change the currency in which the principal, including any amount of
original issue discount, premium, or interest thereon is payable;
o modify or amend the provisions for conversion of any currency into
another currency;
o reduce the amount of any original issue discount security payable upon
acceleration or provable in bankruptcy;
o alter the terms on which holders of the debt securities may convert
or exchange debt securities for stock or other securities of MSDW or
of other entities or for other property or the cash value of the
property, other than in accordance with the antidilution provisions
or other similar adjustment provisions included in the terms of the
debt securities;
o impair the right of any holder to institute suit for the enforcement
of any payment on any debt security when due; or
o reduce the percentage of debt securities the consent of whose holders
is required for modification of the indentures.
Modification of Subordination Provisions. We may not amend the
Subordinated Debt Indenture to alter the subordination of any outstanding
subordinated debt securities without the written consent of each potentially
adversely affected holder of senior indebtedness then outstanding.
(Subordinated Debt Indenture, Section 8.06)
Concerning Our Relationship with the Trustees
We and our subsidiaries maintain ordinary banking relationships and credit
facilities with The Chase Manhattan Bank and affiliates of Bank One Trust
Company, N.A.
DESCRIPTION OF UNITS
Units will consist of one or more debt securities, universal warrants and
purchase contracts or any combination of them. The applicable prospectus
supplement will also describe:
o the designation and the terms of the units and of any combination of
debt securities, universal warrants and purchase contracts
constituting the units, including whether and under what
circumstances the debt securities, universal warrants or purchase
contracts may be traded separately;
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o any additional terms of the governing Unit Agreement;
o any additional provisions for the issuance, payment, settlement,
transfer or exchange of the units or of the debt securities,
universal warrants or purchase contracts constituting the units; and
o any applicable United States federal income tax consequences.
The terms and conditions described under "Description of Debt Securities,"
"Description of Warrants" and "Description of Purchase Contracts" and those
described below under "--Significant Provisions of the Unit Agreement" and
"--Significant Provisions of the Unit Agreement Without Holders' Obligations"
will apply to each unit and to any debt security, universal warrant or purchase
contract included in each unit, respectively, unless otherwise specified in the
applicable prospectus supplement.
We will issue the units under one or more Unit Agreements, each referred
to as a Unit Agreement, to be entered into between us and a bank or trust
company, as unit agent. We may issue units in one or more series, which will be
described in the applicable prospectus supplement. Units that include purchase
contracts that are all pre-paid purchase contracts, as defined below under
"Description of Purchase Contracts," will be governed by one or more Unit
Agreements designed for units where the holders do not have any further
obligations under the purchase contracts, which we refer to as Unit Agreements
Without Holders' Obligations. We have filed the form of Unit Agreement and Unit
Agreement Without Holders' Obligations as exhibits to the registration
statement. Although we have described below the material provisions of the Unit
Agreement, the Unit Agreement Without Holders' Obligations and the units, these
descriptions are not complete, and you should review the detailed provisions of
the Unit Agreement and Unit Agreement Without Holders' Obligations for a full
description, including the definition of some of the terms used in this
prospectus and for other information regarding the units.
Significant Provisions of the Unit Agreement
Obligations of Unit Holder. Under the terms of the Unit Agreement, each
owner of a unit:
o consents to and agrees to be bound by the terms of the Unit Agreement,
o appoints the unit agent as its authorized agent to execute, deliver
and perform any purchase contract included in the unit in which that
owner has an interest, except in the case of pre-paid purchase
contracts which require no further performance by the owner, and
o irrevocably agrees to be a party to and be bound by the terms of any
purchase contract, other than a pre-paid purchase contract, included
in the unit in which that owner has an interest.
Assumption of Obligations by Transferee. Upon the registration of transfer
of a unit, the transferee will assume the obligations, if any, of the
transferor under any purchase contract included in the unit and under any other
security constituting that unit, and the transferor will be released from those
obligations. Under the Unit Agreement, we consent to the transfer of these
obligations to the transferee, to the assumption of these obligations by the
transferee and to the release of the transferor, if the transfer is made in
accordance with the provisions of the Unit Agreement.
Remedies. Upon the acceleration of the debt securities constituting any
units, our obligations and those of the owners under any purchase contracts
constituting a part of the units may also be accelerated upon the request of
the owners of not less than 25% of the affected purchase contracts, on behalf
of all the owners.
Limitation on Actions by You as an Individual Holder. No owner of any unit
will have any right under the Unit Agreement to institute any action or
proceeding at law or in equity or in bankruptcy or otherwise regarding the Unit
Agreement, or for the appointment of a trustee, receiver, liquidator, custodian
or other similar official, unless the owner will have given written notice to
the unit agent and to us of the occurrence and continuance of a default
thereunder and:
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o in the case of an event of default under the debt securities or the
relevant indenture, unless the procedures, including notice to us and
the trustee, described in the indenture have been complied with; and
o in the case of a failure by MSDW to observe or perform any of its
obligations under the Unit Agreement relating to any purchase
contracts, other than pre-paid purchase contracts, included in the
unit, unless:
o owners of not less than 25% of the affected purchase contracts
have (a) requested the unit agent to institute that action or
proceeding in its own name as unit agent under the Unit
Agreement and (b) offered the unit agent reasonable indemnity;
o the unit agent has failed to institute that action or proceeding
within 60 days of that request by the owners referred to above;
and
o the owners of a majority of the outstanding affected units have
not given directions to the unit agent inconsistent with those
of the owners referred to above.
If these conditions have been satisfied, any owner of an affected unit may
then, but only then, institute an action or proceeding. Notwithstanding the
above, the owner of any unit or purchase contract will have the unconditional
right to purchase or sell, as the case may be, purchase contract property under
the purchase contract and to institute suit for the enforcement of that right.
Purchase contract property is defined under "Description of Purchase Contracts"
below.
Negative Pledge. Because we are a holding company, our assets consist
primarily of the securities of our subsidiaries. The negative pledge provisions
of the Unit Agreement limit our ability to pledge some of these securities. The
Unit Agreement provides that we will not, and will not permit any subsidiary
to, create, assume, incur or guarantee any indebtedness for borrowed money that
is secured by a pledge, lien or other encumbrance except for liens specifically
permitted by the Unit Agreement on:
(1) the voting securities of Morgan Stanley & Co. Incorporated,
Morgan Stanley & Co. International Limited, Dean Witter Reynolds Inc.,
Greenwood Trust Company, or any subsidiary succeeding to any substantial
part of the business now conducted by any of those corporations, which we
refer to collectively as the "principal subsidiaries," or
(2) the voting securities of a subsidiary that owns, directly or
indirectly, the voting securities of any of the principal subsidiaries,
other than directors' qualifying shares,
without making effective provisions so that the units and the securities
constituting the units under the Unit Agreement will be secured equally and
ratably with indebtedness so secured.
For these purposes, "subsidiary" means any corporation, partnership or other
entity of which at the time of determination we own or control directly or
indirectly more than 50% of the shares of the voting stock or equivalent
interest, and "voting securities" means stock of any class or classes having
general voting power under ordinary circumstances to elect a majority of the
board of directors, managers or trustees of the relevant subsidiary, other than
stock that carries only the conditional right to vote upon the happening of an
event, whether or not that event has happened.
Absence of Protections against All Potential Actions of MSDW. There are no
covenants or other provisions in the Unit Agreement providing for a put right
or increased interest or otherwise that would afford holders of units
additional protection in the event of a recapitalization transaction, a change
of control of MSDW or a highly leveraged transaction.
Modification without Consent of Holders. We and the unit agent may amend
the Unit Agreement and the terms of the purchase contracts and the purchase
contract certificates without the consent of the holders to:
o cure any ambiguity;
o correct or supplement any defective or inconsistent provision; or
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o amend the terms in any other manner which we may deem necessary or
desirable and which will not adversely affect the interests of the
affected holders in any material respect.
Modification with Consent of Holders. We and the unit agent, with the
consent of the holders of not less than a majority of all series of outstanding
units affected, voting as one class, may modify the rights of the holders of
the units of each series so affected or the terms of any purchase contracts
included in any of those series of units and the terms of the Unit Agreement
relating to the purchase contracts of each series so affected. However, we and
the unit agent may not make any of the following modifications without the
consent of the holder of each outstanding unit affected by the modification:
o impair the right to institute suit for the enforcement of any purchase
contract;
o materially adversely affect the holders' rights under any purchase
contract;
o reduce the percentage of purchase contracts constituting part of
outstanding units the consent of whose owners is required for the
modification of the provisions of the Unit Agreement relating to
those purchase contracts or for the waiver of any defaults under the
Unit Agreement relating to those purchase contracts;
o materially adversely affect the holders' units or the terms of the
Unit Agreement (other than terms related to the first three clauses
above); or
o reduce the percentage of outstanding units the consent of whose
owners is required for the modification of the provisions of the Unit
Agreement (other than terms related to the first three clauses
above).
Modifications of any debt securities or pre-paid purchase contracts
included in units may only be made in accordance with the applicable indenture,
as described under "Description of Debt Securities--Modification of the
Indentures." Modifications of any universal warrants included in units may only
be made in accordance with the terms of the universal warrant agreement as
described under "Description of Warrants--Significant Provisions of the Warrant
Agreement."
Merger, Consolidation, Sale, Lease or Conveyance. The Unit Agreement
provides that we will not merge or consolidate with any other person and will
not sell, lease or convey all or substantially all of our assets to any person
unless:
o we will be the continuing corporation; or
o the successor corporation or person that acquires all or substantially
all of our assets:
o will be a corporation organized under the laws of the United
States, a state of the United States or the District of Columbia;
and
o will expressly assume all of our obligations under the Unit
Agreement; and
o immediately after the merger, consolidation, sale, lease or
conveyance, we, that person or that successor corporation will not be
in default in the performance of the covenants and conditions of the
Unit Agreement applicable to us.
Replacement of Unit Certificates or Purchase Contract Certificates. We
will replace any mutilated certificate evidencing a definitive unit or purchase
contract at the expense of the holder upon surrender of that certificate to the
unit agent. We will replace certificates that have been destroyed, lost or
stolen at the expense of the holder upon delivery to us and the unit agent of
evidence satisfactory to us and the unit agent of the destruction, loss or
theft of the certificates. In the case of a destroyed, lost or stolen
certificate, an indemnity satisfactory to the unit agent and to us may be
required at the expense of the holder of the units or purchase contracts
evidenced by that certificate before a replacement will be issued.
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The Unit Agreement provides that, notwithstanding the foregoing, no
replacement certificate need be delivered:
o during the period beginning 15 days before the day of mailing of a
notice of redemption or of any other exercise of any right held by
MSDW with respect to the unit or any security constituting the unit
evidenced by the mutilated, destroyed, lost or stolen certificate and
ending on the day of the giving of that notice;
o if the mutilated, destroyed, lost or stolen certificate evidences any
security selected or called for redemption or other exercise of a
right held by MSDW; or
o at any time on or after the date of settlement or redemption for any
purchase contract included in the unit, or at any time on or after
the last exercise date for any universal warrant included in the
unit, evidenced by the mutilated, destroyed, lost or stolen
certificate, except with respect to any units that remain or will
remain outstanding following the date of settlement or redemption or
the last exercise date.
Unit Agreement Not Qualified under Trust Indenture Act. The Unit Agreement
will not be qualified as an indenture under, and the unit agent will not be
required to qualify as a trustee under, the Trust Indenture Act. Accordingly,
the holders of units and purchase contracts, other than pre-paid purchase
contracts, will not have the benefits of the protections of the Trust Indenture
Act. However, any debt securities or pre-paid purchase contracts issued as part
of a unit will be issued under an indenture qualified under the Trust Indenture
Act, and the trustee under that indenture will be qualified as a trustee under
the Trust Indenture Act.
Title. We, the unit agent, the trustee, the warrant agent and any of their
agents will treat the registered owner of any unit as its owner,
notwithstanding any notice to the contrary, for all purposes.
New York Law to Govern. The Unit Agreement, the units and the purchase
contracts constituting part of the units will be governed by, and construed in
accordance with, the laws of the State of New York.
Significant Provisions of the Unit Agreement Without Holders' Obligations
Remedies. The unit agent will act solely as our agent in connection with
the units governed by the Unit Agreement Without Holders' Obligations and will
not assume any obligation or relationship of agency or trust for or with any
holders of units or interests in those units. Any holder of units or interests
in those units may, without the consent of the unit agent or any other holder
or beneficial owner of units, enforce by appropriate legal action, on its own
behalf, its rights under the Unit Agreement Without Holders' Obligations.
However, the holders of units or interests in those units may only enforce
their rights under the purchase contracts and any debt securities or under any
universal warrants issued as parts of those units in accordance with the terms
of the applicable indenture and the warrant agreement.
Modification. We and the unit agent may amend the Unit Agreement Without
Holders' Obligations without the consent of the holders to:
o cure any ambiguity;
o cure, correct or supplement any defective or inconsistent provision in
the agreement; or
o amend the terms in any other manner which we may deem necessary or
desirable and which will not adversely affect the interest of the
affected holders of units in any material respect.
We and the unit agent, with the consent of the holders of not less than a
majority of units at the time outstanding, may modify or amend the rights of
the affected holders of the affected units and the terms of the Unit Agreement
Without Holders' Obligations. However, we and the unit agent may not, without
the consent of each affected holder of units, make any modifications or
amendments that would:
o materially and adversely affect the exercise rights of the affected
holders, or
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o reduce the percentage of outstanding units the consent of whose
owners is required to consent to a modification or amendment of the
Unit Agreement Without Holders' Obligations.
Pre-paid purchase contracts and any debt securities issued as part of
units governed by the Unit Agreement Without Holders' Obligations may be
modified only in accordance with the applicable indenture, as described above
under "Description of Debt Securities--Modification of the Indentures." Any
universal warrants issued as part of units may be modified only in accordance
with the terms of the warrant agreement as described in "Description of
Warrants--Significant Provisions of the Warrant Agreement."
Merger, Consolidation, Sale, Lease or Conveyance. The Unit Agreement
Without Holders' Obligations provides that we will not merge or consolidate
with any other person and will not sell, lease or convey all or substantially
all of our assets to any person unless:
o we will be the continuing corporation; or
o the successor corporation or person that acquires all or substantially
all of our assets:
o will be a corporation organized under the laws of the United
States, a state of the United States or the District of Columbia;
and
o will expressly assume all of our obligations under the Unit
Agreement Without Holders' Obligations; and
o immediately after the merger, consolidation, sale, lease or
conveyance, we, that person or that successor corporation will not be
in default in the performance of the covenants and conditions of the
Unit Agreement Without Holders' Obligations applicable to us.
Replacement of Unit Certificates. We will replace any mutilated
certificate evidencing a definitive unit at the expense of the holder upon
surrender of that certificate to the unit agent. We will replace certificates
that have been destroyed, lost or stolen at the expense of the holder upon
delivery to us and the unit agent of evidence satisfactory to us and the unit
agent of the destruction, loss or theft of the certificates. In the case of a
destroyed, lost or stolen certificate, an indemnity satisfactory to the unit
agent and to us may be required at the expense of the holder of the units or
prepaid purchase contracts evidenced by that certificate before a replacement
will be issued.
Title. We, the unit agent, the trustee, the warrant agent and any of their
agents will treat the registered owner of any unit as its owner,
notwithstanding any notice to the contrary, for all purposes.
New York Law to Govern. The Unit Agreement Without Holders' Obligations,
the units and the pre-paid purchase contracts constituting part of the units
will be governed by, and construed in accordance with, the laws of the State of
New York.
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DESCRIPTION OF WARRANTS
Offered Warrants
We may issue warrants that are debt warrants or universal warrants. We may
offer warrants separately or together with one or more additional warrants,
purchase contracts or debt securities or any combination of those securities in
the form of units, as described in the applicable prospectus supplement. If we
issue warrants as part of a unit, the accompanying prospectus supplement will
specify whether those warrants may be separated from the other securities in
the unit prior to the warrants' expiration date. Universal warrants issued in
the United States may not be so separated prior to the 91st day after the
issuance of the unit, unless otherwise specified in the applicable prospectus
supplement.
Debt Warrants. We may issue, together with debt securities or separately,
warrants for the purchase of debt securities on terms to be determined at the
time of sale. We refer to this type of warrant as a debt warrant.
Universal Warrants. We may also issue warrants to purchase or sell, on
terms to be determined at the time of sale:
o securities of an entity not affiliated with us, a basket of those
securities, an index or indices of those securities or any
combination of the above;
o currencies; or
o commodities.
We refer to the property in the above clauses as "warrant property." We
refer to this type of warrant as a "universal warrant." We may satisfy our
obligations, if any, with respect to any universal warrants by delivering the
warrant property or, in the case of warrants to purchase or sell securities or
commodities, the cash value of the securities or commodities, as described in
the applicable prospectus supplement.
Further Information in Prospectus Supplement
General Terms of Warrants. The applicable prospectus supplement will
contain, where applicable, the following terms of and other information
relating to the warrants:
o the specific designation and aggregate number of, and the price at
which we will issue, the warrants;
o the currency with which the warrants may be purchased;
o the date on which the right to exercise the warrants will begin and
the date on which that right will expire or, if you may not
continuously exercise the warrants throughout that period, the
specific date or dates on which you may exercise the warrants;
o whether the warrants will be issued in fully registered form or
bearer form, in definitive or global form or in any combination of
these forms, although, in any case, the form of a warrant included in
a unit will correspond to the form of the unit and of any debt
security or purchase contract included in that unit;
o any applicable United States federal income tax consequences;
o the identity of the warrant agent for the warrants and of any other
depositaries, execution or paying agents, transfer agents,
registrars, determination, or other agents;
o the proposed listing, if any, of the warrants or any securities
purchasable upon exercise of the warrants on any securities exchange;
o whether the warrants are to be sold separately or with other
securities as part of units; and
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o any other terms of the warrants.
Additional Terms of Debt Warrants. The prospectus supplement will contain,
where applicable, the following terms of and other information relating to any
debt warrants:
o the designation, aggregate principal amount, currency and terms of
the debt securities that may be purchased upon exercise of the debt
warrants;
o if applicable, the designation and terms of the debt securities with
which the debt warrants are issued and the number of the debt
warrants issued with each of the debt securities;
o if applicable, the date on and after which the debt warrants and the
related debt securities will be separately transferable; and
o the principal amount of debt securities purchasable upon exercise of
each debt warrant, the price at which and the currency in which the
debt securities may be purchased and the method of exercise.
Additional Terms of Universal Warrants. The applicable prospectus
supplement will contain, where applicable, the following terms of and other
information relating to any universal warrants:
o whether the universal warrants are put warrants or call warrants and
whether you or we will be entitled to exercise the warrants;
o the specific warrant property, and the amount or the method for
determining the amount of the warrant property, purchasable or
saleable upon exercise of each universal warrant;
o the price at which and the currency with which the underlying
securities, currencies or commodities may be purchased or sold upon
the exercise of each universal warrant, or the method of determining
that price;
o whether the exercise price may be paid in cash, by the exchange of
any other security offered with the universal warrants or both and
the method of exercising the universal warrants; and
o whether the exercise of the universal warrants is to be settled in
cash or by delivery of the underlying securities, commodities, or
both.
Significant Provisions of the Warrant Agreements
We will issue the warrants under one or more warrant agreements to be
entered into between us and a bank or trust company, as warrant agent, in one
or more series, which will be described in the prospectus supplement for the
warrants. The forms of warrant agreements are filed as exhibits to the
registration statement. The following summaries of significant provisions of
the warrant agreements and the warrants are not intended to be comprehensive
and holders of warrants should review the detailed provisions of the relevant
warrant agreement for a full description and for other information regarding
the warrants.
Modifications without Consent of Warrantholders. We and the warrant agent
may amend the terms of the warrants and the warrant certificates without the
consent of the holders to:
o cure any ambiguity,
o cure, correct or supplement any defective or inconsistent provision,
or
o amend the terms in any other manner which we may deem necessary or
desirable and which will not adversely affect the interests of the
affected holders in any material respect.
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Modifications with Consent of Warrantholders. We and the warrant agent,
with the consent of the holders of not less than a majority in number of the
then outstanding unexercised warrants affected, may modify or amend the warrant
agreement. However, we and the warrant agent may not make any of the following
modifications or amendments without the consent of each affected warrantholder:
o change the exercise price of the warrants;
o reduce the amount receivable upon exercise, cancellation or
expiration of the warrants other than in accordance with the
antidilution provisions or other similar adjustment provisions
included in the terms of the warrants;
o shorten the period of time during which the warrants may be exercised;
o materially and adversely affect the rights of the owners of the
warrants; or
o reduce the percentage of outstanding warrants the consent of whose
owners is required for the modification of the applicable warrant
agreement.
Merger, Consolidation, Sale or Other Disposition. If at any time there
will be a merger or consolidation of MSDW or a transfer of substantially all of
our assets, the successor corporation will succeed to and assume all of our
obligations under each warrant agreement and the warrant certificates. We will
then be relieved of any further obligation under each of those warrant
agreements and the warrants issued under those warrant agreements. See
"Description of Debt Securities--Covenants Restricting Pledges, Mergers and
other Significant Corporate Actions."
Enforceability of Rights of Warrantholders. The warrant agents will act
solely as our agents in connection with the warrant certificates and will not
assume any obligation or relationship of agency or trust for or with any
holders of warrant certificates or beneficial owners of warrants. Any holder of
warrant certificates and any beneficial owner of warrants may, without the
consent of any other person, enforce by appropriate legal action, on its own
behalf, its right to exercise the warrants evidenced by the warrant
certificates in the manner provided for in that series of warrants or pursuant
to the applicable warrant agreement. No holder of any warrant certificate or
beneficial owner of any warrants will be entitled to any of the rights of a
holder of the debt securities or any other warrant property purchasable upon
exercise of the warrants, including, without limitation, the right to receive
the payments on those debt securities or other warrant property or to enforce
any of the covenants or rights in the relevant indenture or any other similar
agreement.
Registration and Transfer of Warrants. Subject to the terms of the
applicable warrant agreement, warrants in registered, definitive form may be
presented for exchange and for registration of transfer, at the corporate trust
office of the warrant agent for that series of warrants, or at any other office
indicated in the prospectus supplement relating to that series of warrants,
without service charge. However, the holder will be required to pay any taxes
and other governmental charges as described in the warrant agreement. The
transfer or exchange will be effected only if the warrant agent for the series
of warrants is satisfied with the documents of title and identity of the person
making the request.
New York Law to Govern. The warrants and each warrant agreement will be
governed by, and construed in accordance with, the laws of the State of New
York.
DESCRIPTION OF PURCHASE CONTRACTS
We may issue purchase contracts, including purchase contracts issued as
part of a unit with one or more debt securities or universal warrants, for the
purchase or sale of:
o securities of an entity not affiliated with MSDW, a basket of those
securities, an index or indices of those securities or any
combination of the above;
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o currencies; or
o commodities.
We refer to this property in the above clauses as "purchase contract property."
Each purchase contract will obligate the holder to purchase or sell, and
obligate MSDW to sell or purchase, on specified dates, the purchase contract
property at a specified price or prices, all as described in the applicable
prospectus supplement. The applicable prospectus supplement will also specify
the methods by which the holders may purchase or sell the purchase contract
property and any acceleration, cancellation or termination provisions or other
provisions relating to the settlement of a purchase contract.
Pre-paid Purchase Contracts
Purchase contracts may require holders to satisfy their obligations under
the purchase contracts at the time they are issued. We refer to these purchase
contracts as "pre-paid purchase contracts." MSDW's obligation to settle
pre-paid purchase contracts on the relevant settlement date will constitute
senior indebtedness or subordinated indebtedness of MSDW. Accordingly, pre-paid
purchase contracts will be issued under the Senior Debt Indenture or the
Subordinated Debt Indenture, as specified in the applicable prospectus
supplement.
Purchase Contracts Issued as Part of Units
Purchase contracts issued as part of a unit will be governed by the terms
and provisions of a Unit Agreement or, in the case of pre-paid purchase
contracts issued as part of a unit that contains no other purchase contracts, a
Unit Agreement Without Holders' Obligations. See "Description of
Units--Significant Provisions of the Unit Agreement" and "--Significant
Provisions of the Unit Agreement Without Holders' Obligations." The applicable
prospectus supplement will specify the following:
o whether the purchase contract obligates the holder to purchase or sell
the purchase contract property;
o whether a purchase contract issued as part of a unit may be separated
from the other securities constituting part of that unit prior to the
purchase contract's settlement date, except that purchase contracts
issued in the United States may not be so separated prior to the 91st
day after the issuance of a unit;
o the methods by which the holders may purchase or sell the purchase
contract property;
o any acceleration, cancellation or termination provisions or other
provisions relating to the settlement of a purchase contract; and
o whether the purchase contracts will be issued in fully registered or
bearer form, in definitive or global form or in any combination of
these forms, although, in any case, the form of a purchase contract
included in a unit will correspond to the form of the unit and of any
debt security or universal warrant included in that unit.
Settlement of Purchase Contracts. Where purchase contracts issued together
with debt securities as part of a unit require the holders to buy purchase
contract property, the unit agent may apply principal payments from the debt
securities in satisfaction of the holders' obligations under the related
purchase contract as specified in the prospectus supplement. The unit agent
will not so apply the principal payments if the holder has delivered cash to
meet its obligations under the purchase contract. To settle the purchase
contract and receive the purchase contract property, the holder must present
and surrender the unit certificates at the office of the unit agent. If a
holder settles its obligations under a purchase contract that is part of a unit
in cash rather than by delivering the debt security that is part of the unit,
that debt security will remain outstanding if the maturity extends beyond the
relevant settlement date and, as more fully described in the applicable
prospectus supplement, the holder will receive that debt security or an
interest in the relevant global debt security.
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Pledge by Purchase Contract Holders to Secure Performance. To secure the
obligations of the purchase contract holders contained in the Unit Agreement
and in the purchase contracts, the holders, acting through the unit agent, as
their attorney-in-fact, will grant, sell, convey, assign, transfer and pledge
the items in the following sentence, which we refer to as the "pledge," to The
Chase Manhattan Bank, in its capacity as collateral agent, for our benefit. The
pledge is a security interest in and to, and a lien upon and right of set-off
against, all of the holders' right, title and interest in and to:
o any debt securities that are part of units that include the purchase
contracts, or other property as may be specified in the applicable
prospectus supplement, which we refer to as the "pledged items";
o all additions to and substitutions for the pledged items as may be
permissible, if so specified in the applicable prospectus supplement;
o all income, proceeds and collections received or to be received, or
derived or to be derived, at any time from or in connection with the
pledged items described in the two clauses above; and
o all powers and rights owned or thereafter acquired under or with
respect to the pledged items.
The pledge constitutes collateral security for the performance when due by
each holder of its obligations under the Unit Agreement and the applicable
purchase contract. The collateral agent will forward all payments from the
pledged items to us, unless the payments have been released from the pledge in
accordance with the Unit Agreement. We will use the payments received from the
pledged items to satisfy the obligations of the holder of the Unit under the
related purchase contract.
Property Held in Trust by Unit Agent. If a holder fails to settle in cash
its obligations under a purchase contract that is part of a unit and fails to
present and surrender its unit certificate to the unit agent when required,
that holder will not receive the purchase contract property. Instead, the unit
agent will hold that holder's purchase contract property, together with any
distributions, as the registered owner in trust for the benefit of the holder
until the holder presents and surrenders the certificate or provides
satisfactory evidence that the certificate has been destroyed, lost or stolen.
The unit agent or MSDW may require an indemnity from the holder for liabilities
related to any destroyed, lost or stolen certificate. If the holder does not
present the unit certificate, or provide the necessary evidence of destruction
or loss and indemnity, on or before the second anniversary of the settlement
date of the related purchase contract, the unit agent will pay to us the
amounts it received in trust for that holder. Thereafter, the holder may
recover those amounts only from us and not the unit agent. The unit agent will
have no obligation to invest or to pay interest on any amounts it holds in
trust pending distribution.
DESCRIPTION OF CAPITAL STOCK
As of the date of this prospectus, MSDW's authorized capital stock
consists of 3,500,000,000 shares of common stock, par value $0.01 per share,
and 30,000,000 shares of preferred stock, par value $0.01 per share.
The rights of holders of preferred stock offered by this prospectus will
be subject to, and may be adversely affected by, issuances of preferred stock
in the future. Under some circumstances, alone or in combination with other
provisions of our certificate of incorporation, described under "--Additional
Provisions of MSDW's Certificate of Incorporation and By-laws" below, our
issuances of preferred stock may discourage or make more difficult an
acquisition of MSDW that the Board of Directors deems undesirable.
The Board of Directors of MSDW has the power, without further action by
the stockholders, unless action is required by applicable laws or regulations
or by the terms of outstanding preferred stock, to issue preferred stock in one
or more series and to fix the voting rights, designations, preferences and
other terms applicable to the preferred stock to be issued. The Board of
Directors may issue preferred stock to obtain additional financing, in
connection with acquisitions, to officers, directors or employees of MSDW and
its subsidiaries in accordance with benefit plans or otherwise and for other
proper corporate purposes.
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Outstanding Capital Stock
Outstanding Common Stock. As of February 29, 2000, there were approximately
1,134,181,285 shares of our common stock outstanding.
Outstanding Preferred Stock. On February 29, 2000, MSDW also had
outstanding the following series of preferred stock:
o 1,000,000 shares of 7-3/4% Cumulative Preferred Stock, with a stated
value of $200.00 per share, which we refer to as the 7-3/4% Preferred
Stock; and
o 1,725,000 shares of Series A Fixed/Adjustable Rate Cumulative
Preferred Stock, with a stated value of $200.00 per share, which we
refer to as the Series A Fixed/Adjustable Rate Preferred Stock.
We refer to the 7-3/4% Preferred Stock and the Series A Fixed/Adjustable
Rate Preferred Stock as the Existing Cumulative Preferred Stock.
Cumulative Preferred Stock Issuable under the Capital Units. In addition,
we and our wholly-owned subsidiary Morgan Stanley Finance plc have outstanding
Capital Units. Each Capital Unit consists of a subordinated debenture issued by
Morgan Stanley Finance plc, which we guaranteed on a subordinated basis, and a
related purchase contract we issued that requires the holder to purchase one
depositary share representing ownership of a fraction or multiple of a share of
our preferred stock. The Capital Units may result in the issuance at any time
of up to:
o 996,776 shares of our 8.40% Cumulative Preferred Stock, with a stated
value of $200.00 per share, which we refer to as the 8.40% Preferred
Stock;
o 847,500 shares of our 8.20% Cumulative Preferred Stock, with a stated
value of $200.00 per share, which we refer to as the 8.20% Preferred
Stock; and
o 348,300 shares of our 8.03% Cumulative Preferred Stock, with a stated
value of $200.00 per share, which we refer to as the 8.03% Preferred
Stock.
We refer to the 8.40% Preferred Stock, the 8.20% Preferred Stock and the
8.03% Preferred Stock collectively as the Capital Units Cumulative Preferred
Stock.
Series A Junior Participating Preferred Stock Issuable under Rights Plan.
In addition, we have authorized for issuance up to 450,000 shares of Series A
Junior Participating Preferred Stock, par value $0.01 per share, which may be
issued upon the exercise of rights issued to the holders of our common stock
under our Rights Plan. See "--The Rights Plan."
The preceding summary and the following summary of the terms of the
offered preferred stock do not purport to be complete and are qualified by our
certificate of incorporation and by the Certificates of Designation of
Preferences and Rights for each series of Existing Cumulative Preferred Stock,
each series of Capital Units Cumulative Preferred Stock and the Series A Junior
Participating Preferred Stock.
Offered Preferred Stock
Our Board of Directors has authorized the issuance in series of additional
shares of preferred stock and has authorized a committee of the Board of
Directors to establish and designate series and to fix the number of shares and
the relative rights, preferences and limitations of the respective series of
the preferred stock offered by this prospectus and the applicable prospectus
supplement. The shares of offered preferred stock, when issued and sold, will
be fully paid and nonassessable.
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Terms Specified in Prospectus Supplement. The following description sets
forth some general terms and provisions of the offered preferred stock. The
number of shares and all of the relative rights, preferences and limitations of
the respective series of offered preferred stock that the Board of Directors or
the committee establishes will be described in the applicable prospectus
supplement. The terms of particular series of offered preferred stock may
differ, among other things, in:
o designation;
o number of shares that constitute the series;
o dividend rate, or the method of calculating the dividend rate;
o dividend periods, or the method of calculating the dividend periods;
o redemption provisions, including whether or not, on what terms and at
what prices the shares will be subject to redemption at our option;
o voting rights;
o preferences and rights upon liquidation or winding-up;
o whether or not and on what terms the shares will be convertible into
or exchangeable for shares of any other class, series or security of
MSDW or any other corporation or any other property;
o whether depositary shares representing the offered preferred stock
will be offered and, if so, the fraction or multiple of a share that
each depositary share will represent; and
o the other rights and privileges and any qualifications, limitations or
restrictions of those rights or privileges.
We have summarized below the material provisions of a certificate of
designation authorizing the issuance of any series of offered preferred stock.
These summaries are not complete and each investor should refer to the form of
certificate of designation which has been filed as an exhibit to the
registration statement and to our certificate of incorporation for a complete
description of the terms and definitions. The Board of Directors or a duly
authorized committee of the Board of Directors will adopt the resolutions to be
included in the certificate of designation prior to the issuance of a series of
offered preferred stock, and the certificate of designation will be filed with
the Secretary of State of the State of Delaware as soon thereafter as
reasonably practicable.
Rank. Each series of offered preferred stock will rank, with respect to
voting powers, preferences or relative, participating, optional and other
special rights, including with respect to the payment of dividends and the
distribution of assets, whether upon liquidation or otherwise:
o junior to any series of capital stock of MSDW expressly stated to be
senior to that series of offered preferred stock;
o senior to the common stock of MSDW and any class of capital stock of
MSDW expressly stated to be junior to that series of offered
preferred stock; and
o on a parity with each other series of offered preferred stock and all
other classes of capital stock of MSDW.
The offered preferred stock will rank, as to payment of dividends and amounts
payable on liquidation, on a parity with each series of the Existing Cumulative
Preferred Stock and, if issued, the Capital Units Cumulative Preferred Stock.
Dividends. If described in the applicable prospectus supplement, we will
pay cumulative cash dividends to the holders of offered preferred stock, when
and as declared by the Board of Directors or the committee out of funds legally
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available for payment. The prospectus supplement will detail the annual rate of
dividends or the method or formula for determining or calculating them, and the
payment dates and payment periods for dividends. The Board of Directors or the
committee will fix a record date for the payment of dividends not more than 60
or less than 10 days preceding the dividend payment date. We will pay dividends
on the offered preferred stock to the holders of record on that record date.
Dividends will be cumulative from the date of original issue of the series. A
series of offered preferred stock will be junior as to payment of dividends to
any series of preferred stock that may be issued in the future that is
expressly stated to be senior as to payment of dividends to that series. If at
any time we have failed to pay accrued dividends on any of those senior shares
when payable, we may not pay any dividend on that series of offered preferred
stock or redeem or otherwise repurchase any shares of that series until we have
paid or set aside for payment the full amount of the accumulated but unpaid
dividends on the senior shares.
We will not declare, pay or set aside for payment any dividends on any
preferred stock ranking on a parity as to payment of dividends with the offered
preferred stock unless we declare, pay or set aside for payment, dividends on
all the outstanding shares of offered preferred stock for all dividend payment
periods ending on or before the dividend payment date for any parity stock. We
must declare, pay or set aside for payment any amounts on the offered preferred
stock ratably in proportion to the respective amounts of dividends (1)
accumulated and unpaid or payable on that parity stock, on the one hand, and
(2) accumulated and unpaid or payable through the dividend payment period or
periods of the offered preferred stock next preceding the dividend payment
date, on the other hand.
Except as described above, unless we have paid the full cumulative
dividends on the outstanding shares of offered preferred stock, we may not take
any of the following actions with respect to our common stock or any other
preferred stock of MSDW ranking junior or on parity with the offered preferred
stock as to dividend payments:
o declare, pay or set aside for payment any dividends, other than
dividends payable in our common stock,
o make other distributions,
o redeem, purchase or otherwise acquire our common stock or junior
preferred stock for any consideration, or
o make any payment to or available for a sinking fund for the
redemption of our common stock or junior preferred stock.
Preferred stock on a parity with offered preferred stock currently includes the
Existing Cumulative Preferred Stock and, if issued, would include the Capital
Units Cumulative Preferred Stock.
The provisions of the immediately preceding paragraph will not apply to
any monies we deposit in any sinking fund with respect to any preferred stock
in compliance with the provisions of the sinking fund. We may apply monies so
deposited to the purchase or redemption of the preferred stock in accordance
with the terms of the sinking fund, regardless of whether at the time of
application we have paid or declared and set aside for payment full cumulative
dividends upon shares of the offered preferred stock outstanding on the last
dividend payment date for any series of offered preferred stock. The provisions
of the immediately preceding paragraph also do not restrict the ability of a
holder of any junior or parity preferred stock or common stock to convert those
securities into or exchange those securities for MSDW capital stock ranking
junior to the offered preferred stock as to dividend payments.
We will compute the amount of dividends payable for the initial dividend
period or any period shorter than a full dividend period on the basis of a
360-day year of twelve 30-day months, unless otherwise indicated in the
prospectus supplement. Accrued but unpaid dividends will not bear interest.
Redemption. The prospectus supplement will indicate whether, and on what
terms, shares of any series of offered preferred stock will be subject to
mandatory redemption or sinking fund provision. The prospectus supplement will
also indicate whether, and on what terms, including the date on or after which
redemption may occur, we may redeem shares of a series of the offered preferred
stock. We will effect any optional redemption upon not less than 30 days'
notice at a redemption price of not less than the stated value per share of the
applicable series of offered preferred stock plus accrued and accumulated but
unpaid dividends to but excluding the date fixed for redemption. If we have not
paid full
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cumulative dividends on all outstanding shares of offered preferred stock we
may not redeem any shares of offered preferred stock in part and we may not
purchase or acquire any shares of offered preferred stock, otherwise than by a
purchase or exchange offer made on the same terms to all holders of the offered
preferred stock. If fewer than all the outstanding shares of a series of
offered preferred stock are to be redeemed, we will select those to be redeemed
by lot or a substantially equivalent method.
Liquidation Rights. In the event of any liquidation, dissolution or
winding up of MSDW, the holders of shares of offered preferred stock will be
entitled to receive, out of the assets of MSDW available for distribution to
stockholders, liquidating distributions in an amount equal to the stated value
per share of offered preferred stock, as described in the applicable prospectus
supplement, plus accrued and accumulated but unpaid dividends to the date of
final distribution, before any distribution is made to holders of
o any other shares of preferred stock ranking junior to the offered
preferred stock as to rights upon liquidation, dissolution or winding
up, or
o our common stock.
However, holders of the shares of offered preferred stock will not be entitled
to receive the liquidation price of their shares until we have paid or set
aside an amount sufficient to pay in full the liquidation preference of any
other shares of MSDW's capital stock ranking senior as to rights upon
liquidation, dissolution or winding up. Neither a consolidation or merger of
MSDW with or into another corporation nor a merger of another corporation with
or into MSDW nor a sale or transfer of all or part of MSDW's assets for cash or
securities will be considered a liquidation, dissolution or winding up of MSDW.
If upon any liquidation, dissolution or winding up of MSDW, we have not
paid the amounts payable with respect to the offered preferred stock and any
other preferred stock ranking on parity with the offered preferred stock as to
rights upon liquidation, dissolution or winding up, the holders of the offered
preferred stock and of that other preferred stock will share ratably in any
distribution in proportion to the full respective preferential amounts to which
they are entitled. After we have paid the full amount of the liquidating
distribution to which they are entitled, the holders of the offered preferred
stock will not be entitled to any further participation in any distribution of
assets by MSDW.
Voting Rights. Unless otherwise determined by our Board of Directors and
indicated in the prospectus supplement, holders of the offered preferred stock
will not have any voting rights except as described below or as otherwise from
time to time required by law. Whenever dividends on any shares of offered
preferred stock or any other class or series of stock ranking on a parity with
the offered preferred stock with respect to the payment of dividends are in
arrears for dividend periods, whether or not consecutive, containing in the
aggregate a number of days equivalent to six calendar quarters, the holders of
shares of offered preferred stock, voting separately as a class with all other
series of preferred stock, including the Existing Cumulative Preferred Stock,
having similar voting rights that are exercisable, will be entitled to vote for
the election of two of the authorized number of directors of MSDW at the next
annual meeting of stockholders and at each subsequent meeting until we have
paid or set apart for payment all dividends accumulated on the offered
preferred stock. The term of office of all directors elected by the holders of
preferred stock will terminate immediately upon the termination of the right of
the holders of preferred stock to vote for directors. Each holder of shares of
the offered preferred stock will have one vote for each share of offered
preferred stock held.
So long as any shares of the offered preferred stock remain outstanding,
we will not, without the consent of the holders of at least two-thirds of the
shares of offered preferred stock outstanding at the time
o issue or increase the authorized amount of any class or series of
stock ranking prior to the outstanding offered preferred stock as to
dividends or upon liquidation, or
o amend, alter or repeal the provisions of our certificate of
incorporation or of the resolutions contained in the certificate of
designation, whether by merger, consolidation or otherwise, so as to
materially and adversely affect any power, preference or special
right of the outstanding offered preferred stock or their holders.
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Holders of the offered preferred stock will vote separately as a class with all
other series of preferred stock, including the Existing Cumulative Preferred
Stock and any issued Capital Units Cumulative Preferred Stock, having similar
voting rights have been conferred that are exercisable. For purposes of the
preceding sentence, any increase in the amount of the authorized common stock
or authorized preferred stock or the creation and issuance of other series of
common stock or preferred stock ranking on a parity with or junior to the
offered preferred stock as to dividends and upon liquidation will not be
considered to materially and adversely affect those powers, preferences or
special rights.
Agents and Registrar for Offered Preferred Stock. The transfer agent,
dividend disbursing agent and registrar for each series of offered preferred
stock will be The Bank of New York.
Depositary Shares
We may, at our option, elect to offer fractional shares or some multiple
of shares of offered preferred stock, rather than individual shares of offered
preferred stock. If we choose to do so, we will issue depositary receipts for
depositary shares, each of which will represent a fraction or a multiple of a
share of a particular series of offered preferred stock as described below.
The following statements concerning depositary shares, depositary
receipts, and the deposit agreement are not intended to be comprehensive and
are qualified in their entirety by reference to the forms of these documents,
which we have filed as exhibits to the registration statement. Each investor
should refer to the detailed provisions of those documents, as we have
explained under the heading "Where You Can Find More Information" in the
Summary.
The shares of any series of offered preferred stock represented by
depositary shares will be deposited under a deposit agreement among MSDW, The
Bank of New York, as depositary, which we refer to as the Preferred Stock
Depositary, and the holders from time to time of depositary receipts issued
under the agreement. Subject to the terms of the deposit agreement, each holder
of a depositary share will be entitled, in proportion to the fraction or
multiple of a share of offered preferred stock represented by that depositary
share, to all the rights and preferences of the offered preferred stock
represented by that depositary share, including dividend, voting and
liquidation rights.
The depositary shares will be evidenced by depositary receipts issued
under the deposit agreement. Depositary receipts will be distributed to those
persons purchasing the fractional or multiple shares of the related series of
offered preferred stock. Immediately following the issuance of shares of a
series of offered preferred stock, we will deposit those shares with the
Preferred Stock Depositary, which will then issue and deliver the depositary
receipts to the purchasers. Depositary receipts will only be issued evidencing
whole depositary shares. A depositary receipt may evidence any number of whole
depositary shares.
Dividends and Other Distributions. The Preferred Stock Depositary will
distribute all cash dividends or other cash distributions received on the
related series of offered preferred stock to the record holders of depositary
shares relating to those series in proportion to the number of the depositary
shares those holders own.
If we make a distribution other than in cash, the Preferred Stock
Depositary will distribute the property it receives to the record holders of
depositary shares in proportion to the number of depositary shares those
holders own, unless the Preferred Stock Depositary determines that the
distribution cannot be made proportionately among those holders or that it is
not feasible to make the distribution. In that event, the Preferred Stock
Depositary may, with our approval, sell the property and distribute the net
proceeds to the holders in proportion to the number of depositary shares they
own.
The amount distributed to holders of depositary shares will be reduced by
any amounts required to be withheld by MSDW or the Preferred Stock Depositary
on account of taxes or other governmental charges.
Withdrawal of Stock. Upon surrender of the depositary receipts at the
corporate trust office of the Preferred Stock Depositary and upon payment of
the taxes, charges and fees provided for in the deposit agreement and
compliance with any other requirement of the deposit agreement, the holder of
the depositary shares evidenced by those depositary receipts is entitled to
delivery of the number of whole shares of the related series of offered
preferred stock and any money or other property, if any, represented by those
shares. Holders of depositary shares will be entitled to receive
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whole shares of the related series of offered preferred stock, but holders of
whole shares of offered preferred stock will not thereafter be entitled to
deposit their shares of offered preferred stock with the Preferred Stock
Depositary or to receive depositary shares therefor. If the depositary receipts
delivered by the holder evidence a number of depositary shares in excess of the
number representing whole shares of the related series of offered preferred
stock to be withdrawn, the Preferred Stock Depositary will deliver to the
holder, or upon his or her order, at the same time a new depositary receipt
evidencing the excess number of depositary shares.
Voting the Offered Preferred Stock. Upon receiving notice of any meeting
at which the holders of any series of the offered preferred stock are entitled
to vote, the Preferred Stock Depositary will mail the information contained in
the notice to the record holders of the depositary shares relating to that
series of offered preferred stock. Each record holder of the depositary shares
on the record date, which will be the same date as the record date for the
related series of offered preferred stock, may instruct the Preferred Stock
Depositary how to exercise his or her voting rights. The Preferred Stock
Depositary will endeavor, insofar as practicable, to vote or cause to be voted
the number of shares of the offered preferred stock represented by those
depositary shares in accordance with those instructions, if the Preferred Stock
Depositary receives the instructions sufficiently in advance of the meeting,
and we will agree to take all reasonable action that may be deemed necessary by
the Preferred Stock Depositary in order to enable the Preferred Stock
Depositary to do so. The Preferred Stock Depositary will abstain from voting
any shares of the offered preferred stock if it does not receive specific
instructions from the holder of the depositary shares representing them.
Redemption of Depositary Shares. Depositary shares will be redeemed from
any proceeds received by the Preferred Stock Depositary resulting from the
redemption, in whole or in part, of the series of the offered preferred stock
represented by those depositary shares. The redemption price per depositary
share will equal the applicable fraction or multiple of the redemption price
per share payable with respect to the series of the offered preferred stock. If
we redeem shares of a series of offered preferred stock held by the Preferred
Stock Depositary, the Preferred Stock Depositary will redeem as of the same
redemption date the number of depositary shares representing the shares of
offered preferred stock that we redeem. If less than all the depositary shares
will be redeemed, the depositary shares to be redeemed will be selected by lot
or substantially equivalent method determined by the Preferred Stock
Depositary.
After the date fixed for redemption, the depositary shares called for
redemption will no longer be deemed to be outstanding, and all rights of the
holders of the depositary shares will cease, except the right to receive the
monies payable upon the redemption and any other property to which the holders
were entitled upon the redemption upon surrender to the Preferred Stock
Depositary of the depositary receipts evidencing the depositary shares. Any
funds deposited by us with the Preferred Stock Depositary for any depositary
shares that the holders fail to redeem will be returned to us after a period of
two years from the date the funds are deposited.
Amendment and Termination of the Deposit Agreement. We may amend the form
of depositary receipt evidencing the depositary shares and any provision of the
deposit agreement at any time and from time to time by agreement with the
Preferred Stock Depositary. However, any amendment that materially and
adversely alters the rights of the holders of depositary shares will not be
effective unless it has been approved by the holders of at least a majority of
the depositary shares then outstanding, and no amendment may impair the right
of any holder of any depositary shares, described above under "--Withdrawal of
Stock," to receive shares of the related series of offered preferred stock and
any money or other property represented by those depositary shares, except in
order to comply with mandatory provisions of applicable law. We may terminate
the deposit agreement at any time with at least 60 days' prior written notice
to the Preferred Stock Depositary. Within 30 days of that date, the Preferred
Stock Depositary will deliver or make available for delivery to holders of
depositary shares, upon surrender of the depositary receipts evidencing the
depositary shares, the number of whole or fractional shares of the related
series of offered preferred stock as are represented by the depositary shares.
The deposit agreement will automatically terminate after there has been a final
distribution on the related series of offered preferred stock in connection
with any liquidation, dissolution or winding up of MSDW and that distribution
has been made to the holders of depositary shares.
Charges of Preferred Stock Depositary. We will pay all transfer and other
taxes and governmental charges arising solely from the existence of the
depositary arrangements. We will pay charges of the Preferred Stock Depositary,
including charges in connection with the initial deposit of the related series
of offered preferred stock, the initial issuance of the depositary shares and
all withdrawals of shares of the related series of offered preferred stock.
However, holders
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of depositary shares will pay other transfer and other taxes and governmental
charges and the other charges expressly provided in the deposit agreement to be
for their accounts.
Limitation on Liability of Company and Preferred Stock Depositary. Neither
the Preferred Stock Depositary nor MSDW will be liable if it is prevented or
delayed by law or any circumstance beyond its control from performing its
obligations under the deposit agreement. The obligations of MSDW and the
Preferred Stock Depositary under the deposit agreement will be limited to
performance with best judgment and in good faith of their duties thereunder,
except that they will be liable for willful misconduct in the performance of
their duties thereunder, and they will not be obligated to appear in, prosecute
or defend any legal proceeding related to any depositary receipts, depositary
shares or series of offered preferred stock unless satisfactory indemnity is
furnished.
Corporate Trust Office of Preferred Stock Depositary. The Preferred Stock
Depositary's corporate trust office is currently located at 101 Barclay Street,
New York, New York 10286. The Preferred Stock Depositary will act as transfer
agent and registrar for depositary receipts and if shares of a series of
offered preferred stock are redeemable, the Preferred Stock Depositary will act
as redemption agent for the corresponding depositary receipts.
Resignation and Removal of Preferred Stock Depositary. The Preferred Stock
Depositary may resign at any time by delivering to us written notice of its
election to do so, and we may at any time remove the Preferred Stock
Depositary. Any resignation or removal will take effect upon the appointment of
a successor Preferred Stock Depositary. A successor must be appointed within 60
days after delivery of the notice of resignation or removal and must be a bank
or trust company having its principal office in the United States and a
combined capital and surplus of at least $50,000,000.
Reports to Holders. We will deliver all required reports and
communications to holders of the offered preferred stock to the Preferred Stock
Depositary, and it will forward those reports and communications to the holders
of depositary shares.
Existing Common Stock
Each holder of our common stock has one vote per share on all matters
voted on generally by the stockholders, including the election of directors.
Except as otherwise required by law or as provided with respect to any series
of preferred stock, the holders of our common stock will possess all voting
power. The Board of Directors is divided into three classes of directors with
the term of one class expiring at each annual meeting of stockholders. Because
our certificate of incorporation does not provide for cumulative voting rights,
the holders of a plurality of the voting power of the then outstanding shares
of capital stock entitled to be voted generally in the election of directors,
which we refer to as the "voting stock," represented at a meeting will be able
to elect all the directors standing for election at the meeting. As of February
8, 2000, some of the current and former senior officers of MSDW and its
subsidiaries beneficially owned in the aggregate 112,695,436 shares of MSDW
common stock subject to voting restrictions contained in various voting
agreements. As of that date, those shares constituted approximately 9.91% of
the votes that are entitled to be cast at the 2000 annual meeting of our
stockholders.
The holders of our common stock are entitled to share equally in dividends
as may be declared by the Board of Directors out of funds legally available
therefor, but only after payment of dividends required to be paid on
outstanding shares of offered preferred stock, Existing Cumulative Preferred
Stock and any other class or series of stock having preference over the common
stock as to dividends, including, if issued, the Capital Units Cumulative
Preferred Stock.
Upon voluntary or involuntary liquidation, dissolution or winding up of
MSDW, the holders of the common stock will share pro rata in the assets
remaining after payments to creditors and holders of any offered preferred
stock, Existing Cumulative Preferred Stock and any other class or series of
stock having preference over the common stock upon liquidation, dissolution or
winding up that may be then outstanding, including, if issued, the Capital
Units Cumulative Preferred Stock. There are no preemptive or other subscription
rights, conversion rights or redemption or sinking fund provisions with respect
to shares of our common stock.
All of the outstanding shares of our common stock are fully paid and
nonassessable.
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The transfer agent and registrar for the common stock is Morgan Stanley
Dean Witter Trust FSB.
Existing Cumulative Preferred Stock and Capital Units Cumulative Preferred Stock
Unless otherwise indicated, the terms and provisions described below
relate to each of the 7-3/4% Preferred Stock, the Series A Fixed/Adjustable
Rate Preferred Stock and the Capital Units Cumulative Preferred Stock. Other
than as described below, the terms of the 7-3/4% Preferred Stock, the Series A
Fixed/Adjustable Rate Preferred Stock and, if issued, the Capital Units
Cumulative Preferred Stock are identical, and the discussion below relating to
the Existing Cumulative Preferred Stock also applies to the Capital Units
Cumulative Preferred Stock.
Rank. Each series of the Existing Cumulative Preferred Stock and, if
issued, the Capital Units Cumulative Preferred Stock ranks on a parity with
each other and with the offered preferred stock, and ranks prior to the common
stock as to payment of dividends and amounts payable on liquidation. The shares
of Existing Cumulative Preferred Stock are fully paid and nonassessable, are
not convertible into common stock of MSDW and have no preemptive rights.
Dividends. Holders of the corresponding shares of Existing Cumulative
Preferred Stock, except for the Series A Fixed/Adjustable Rate Preferred Stock,
are entitled to receive, when and as declared by the Board of Directors out of
legally available funds, cumulative cash dividends payable quarterly at the
rate of:
o 7-3/4% per year (for the 7-3/4% Preferred Stock),
o 8.40% per year (if the 8.40% Preferred Stock is issued),
o 8.20% per year (if the 8.20% Preferred Stock is issued), and
o 8.03% per year (if the 8.03% Preferred Stock is issued).
Holders of the shares of Series A Fixed/Adjustable Rate Preferred Stock
are entitled to receive, when and as declared by the Board of Directors out of
legally available funds, cumulative cash dividends payable quarterly at a rate
of 5.91% per annum through November 30, 2001 and thereafter at a rate of .37%
plus the highest of the Treasury Bill Rate, the Ten-Year Constant Maturity Rate
and the Thirty-Year Constant Maturity Rate, each as defined in the applicable
certificate of designation. However, the dividends payable on the Series A
Fixed/Adjustable Rate Preferred Stock will not be less than 6.41% nor greater
than 12.41% per year.
The amount of dividends payable on the 7-3/4% Preferred Stock and the
Series A Fixed/Adjustable Rate Preferred Stock will be adjusted in the event of
specified amendments to the Internal Revenue Code of 1986 relating to the
"dividends received deduction."
The Existing Cumulative Preferred Stock will be junior as to dividends to
any preferred stock that may be issued in the future that is expressly senior
as to dividends to the Existing Cumulative Preferred Stock. If at any time we
have failed to pay accrued dividends on any of those senior shares at the time
they are payable, we may not pay any dividend on the Existing Cumulative
Preferred Stock or redeem or otherwise repurchase any shares of Existing
Cumulative Preferred Stock until we have paid in full, or set aside dividends
for payment, the accumulated but unpaid dividends on those senior shares.
We will not declare or pay or set aside for payment dividends on any
preferred stock ranking on a parity as to payment of dividends with the
Existing Cumulative Preferred Stock unless we also declare or pay or set aside
for payment dividends on the outstanding shares of Existing Cumulative
Preferred Stock for all dividend payment periods ending on or before the
dividend payment date of any parity stock. We must declare, pay or set aside
for payment any amounts on the Existing Cumulative Preferred Stock ratably in
proportion to the respective amounts of dividends (1) accumulated and unpaid or
payable on that parity stock, on the one hand, and (2) accumulated and unpaid
or payable through the dividend payment period or periods of each series of the
Existing Cumulative Preferred Stock next preceding the dividend payment date,
on the other hand.
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Except as described above, unless we have paid the full cumulative
dividends on the outstanding shares of Existing Cumulative Preferred Stock, we
may not with respect to our common stock or any other preferred stock of MSDW
ranking junior to or on a parity with the Existing Cumulative Preferred Stock
as to dividend payments:
o declare, pay or set aside for payment any dividends, other than
dividends payable in our common stock,
o make other distributions,
o redeem, purchase or otherwise acquire our common stock or junior
preferred stock for any consideration, or
o make any payment to or available for a sinking fund for redemption of
our common stock or junior preferred stock.
The provisions of the immediately preceding paragraph do not apply to any
monies we deposit in any sinking fund with respect to any preferred stock in
compliance with the provisions of that sinking fund. We may apply monies so
deposited to the purchase or redemption of the preferred stock in accordance
with the terms of the sinking fund, regardless of whether at the time of
application we have paid or declared or set aside for payment full cumulative
dividends upon shares of any series of Existing Cumulative Preferred Stock. The
provisions of the immediately preceding paragraph also do not restrict the
ability of the holder of any junior or parity preferred stock or common stock
to convert their securities into or exchange those securities for MSDW capital
stock ranking junior to the Existing Cumulative Preferred Stock as to dividend
payments.
Redemption. The Existing Cumulative Preferred Stock is not and will not
be subject to any mandatory redemption or sinking fund provision and is
redeemable as follows:
o the 7-3/4% Preferred Stock is not redeemable prior to August 30,
2001, except that under some circumstances it may be redeemed prior
to that date at specified prices;
o the Series A Fixed/Adjustable Rate Preferred Stock is not redeemable
prior to November 30, 2001, except that under some circumstances it
may be redeemed prior to that date at specified prices;
o if issued, the 8.40% Preferred Stock will not be redeemable prior to
August 30, 2000;
o if issued, the 8.20% Preferred Stock will not be redeemable prior to
November 30, 2000; and
o if issued, the 8.03% Preferred Stock will not be redeemable prior to
February 28, 2007, except that under some circumstances it may be
redeemed prior to that date at specified prices.
On or after these dates, the applicable series of Existing Cumulative Preferred
Stock will be redeemable at our option, in whole or in part, upon not less than
30 days' notice, in each case at a redemption price equal to $200.00 per share
(except that the 8.03% Preferred Stock is redeemable at specified prices during
specified periods following the indicated date) plus accrued and accumulated
but unpaid dividends to but excluding the date fixed for redemption.
Liquidation Rights. In the event of any liquidation, dissolution or
winding up of MSDW, the holders of shares of Existing Cumulative Preferred
Stock and will be entitled to receive liquidating distributions in the amount
of $200.00 per share plus accrued and accumulated but unpaid dividends to the
date of final distribution before any distribution is made to holders of
o any other shares of preferred stock ranking junior to the Existing
Cumulative Preferred Stock, as to rights upon liquidation,
dissolution or winding up, and
o common stock.
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However, the holders of the shares of Existing Cumulative Preferred Stock will
not be entitled to receive the liquidation price of these shares until the
liquidation preference of any other shares of MSDW's capital stock ranking
senior as to rights upon liquidation, dissolution or winding up will have been
paid in full or a sum set aside therefor sufficient to provide for payment in
full.
If upon any liquidation, dissolution or winding up of MSDW, the amounts
payable with respect to the Existing Cumulative Preferred Stock and any other
preferred stock ranking on parity as to rights upon liquidation, dissolution or
winding up are not paid in full, the holders of the Existing Cumulative
Preferred Stock and of that other preferred stock will share ratably in any
distribution in proportion to the full respective preferential amounts to which
they are entitled. After payment of the full amount of the liquidating
distribution to which they are entitled, the holders of Existing Cumulative
Preferred Stock will not be entitled to any further participation in any
distribution of assets by MSDW.
Voting Rights. Holders of Existing Cumulative Preferred Stock do not have
any voting rights except as described below or as otherwise from time to time
required by law. Whenever dividends on any series of Existing Cumulative
Preferred Stock or any other class or series of stock ranking on a parity with
that series of Existing Cumulative Preferred Stock with respect to the payment
of dividends are in arrears for dividend periods, whether or not consecutive,
containing in the aggregate a number of days equivalent to six calendar
quarters, the holders of shares of Existing Cumulative Preferred Stock, voting
separately as a class with all other series of preferred stock having similar
voting rights that are exercisable, will be entitled to vote for the election
of two of the authorized number of directors of MSDW at the next annual meeting
of stockholders and at each subsequent meeting until we have paid or set apart
for payment all dividends accumulated on the Existing Cumulative Preferred
Stock.
The term of office of all directors elected by the holders of preferred
stock will terminate immediately upon the termination of the right of the
holders of preferred stock to vote for directors. Each holder of shares of
Existing Cumulative Preferred Stock will have one vote for each share of
Existing Cumulative Preferred Stock held.
So long as any shares of Existing Cumulative Preferred Stock remain
outstanding, we will not, without the consent of the holders of at least
two-thirds of the shares of Existing Cumulative Preferred Stock outstanding at
the time, voting separately as a class with all other series of preferred stock
upon which like voting rights have been conferred and are exercisable
o issue or increase the authorized amount of any class or series of
stock ranking prior to the Existing Cumulative Preferred Stock as to
dividends or upon liquidation, or
o amend, alter or repeal the provisions of our certificate of
incorporation or of the resolutions contained in the certificate of
designation relating to that series of Existing Cumulative Preferred
Stock, whether by merger, consolidation or otherwise, so as to
materially and adversely affect any power, preference or special
right of that series of Existing Cumulative Preferred Stock or of its
holders.
For purposes of the preceding sentence any increase in the authorized amount of
common stock or preferred stock or the creation and issuance of other series of
common stock or preferred stock ranking on a parity with or junior to the
Existing Cumulative Preferred Stock as to dividends and upon liquidation will
not be deemed to materially and adversely affect those powers, preferences or
special rights.
Transfer Agent for Existing Cumulative Preferred Stock. The transfer agent
and registrar for each series of Existing Cumulative Preferred Stock is The
Bank of New York.
Additional Provisions of MSDW's Certificate of Incorporation and By-laws
Size of the Board of Directors, Removal of Directors and Filling Vacancies
on the Board of Directors. Our Board of Directors currently consists of 10
directors. The Board of Directors is divided into three classes. At each annual
meeting of stockholders, a class of directors is elected for a term expiring at
the third succeeding annual meeting of stockholders after its election, to
succeed that class of directors whose term then expires. Under our amended and
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restated by-laws, a majority vote of the Board of Directors may increase or
decrease the number of directors, except that a three-quarters vote of the
Board of Directors will be required to change the number of directors to an odd
number. However, the by-laws provide that the Board shall consist of not less
than three nor more than fifteen members. Our certificate of incorporation also
provides that directors may be removed only for cause and with the approval of
the holders of at least 80% of the voting power of the voting stock, voting
together as a single class. Any vacancy on the Board of Directors or newly
created directorship will be filled by a majority vote of the remaining
directors then in office though less than a quorum, and those newly elected
directors will serve for a term expiring at the annual meeting of stockholders
at which the term of office of the class to which they have been elected
expires.
Limitations on Actions by Stockholders; Calling Special Meetings of
Stockholders. Our certificate of incorporation provides that, subject to the
rights of holders of any series of preferred stock or any other series of
capital stock set forth in the certificate of incorporation, any action
required or permitted to be taken by our stockholders must be effected at a
duly called annual or special meeting of stockholders and may not be effected
by any consent in writing in lieu of a meeting. Our by-laws provide that
special meetings of the stockholders may be called at any time only by the
Secretary of MSDW at the direction of and pursuant to a resolution of the Board
of Directors.
Amendment of Governing Documents. Our certificate of incorporation
provides that, generally, it can be amended in accordance with the provisions
of the laws of the State of Delaware. Under Section 242 of the Delaware General
Corporation Law, the Board of Directors may propose, and the stockholders may
adopt by a majority vote of the voting stock, an amendment to our certificate
of incorporation. However, our certificate of incorporation also provides that
the approval of 80% of the voting power of the voting stock, voting together as
a single class, is required in order to amend, repeal or adopt any provision
inconsistent with the provisions in the certificate of incorporation relating
to amendment of the by-laws, actions of stockholders and the Board of Directors
and to change the provisions establishing this 80% vote requirement.
Our certificate of incorporation provides that our by-laws may be altered,
amended or repealed or new provisions may be adopted by a majority of the Board
of Directors or with the approval of at least 80% of the voting power of the
voting stock of MSDW, voting together as a single class. Furthermore, the
by-laws provide that they may be altered, amended or repealed or new provisions
may be adopted by a majority of the Board of Directors or with the approval of
at least 80% of the voting power of the voting stock of MSDW. However, a
three-quarters vote of the Board of Directors is required for the Board of
Directors to amend, alter, repeal or adopt new by-laws in conflict with the
provisions of the by-laws relating to the removal of or any modification of the
roles, duties or authority of the Chairman or President of MSDW as of May 31,
1997. In addition, until December 31, 2000, a three-quarters vote of the Board
of Directors is required for the Board of Directors to amend, alter, repeal or
adopt new by-laws in conflict with provisions of the by-laws relating to
actions requiring a supermajority vote of the Board of Directors, actions by
the Board of Directors designating one or more directors to fill any vacancies
on the Board of Directors or on a committee and this supermajority amendment
provision of the by-laws.
Limitation of Directors' Liability. Section 102 of the Delaware General
Corporation Law allows a corporation to eliminate the personal liability of
directors of a corporation to the corporation or to any of its stockholders for
monetary damages for a breach of fiduciary duty as a director, except in the
case where the director breached his duty of loyalty, failed to act in good
faith, engaged in intentional misconduct or knowingly violated a law,
authorized the payment of a dividend or approved a stock repurchase or
redemption in violation of the Delaware General Corporation Law or obtained an
improper personal benefit. Under our certificate of incorporation, a director
of MSDW will not be liable to MSDW or its stockholders for monetary damages for
breach of fiduciary duty as a director, except to the extent the exemption from
liability or limitation of liability is not permitted under the Delaware
General Corporation Law as in effect or as that law may be amended.
The Rights Plan
Under a rights agreement, which we refer to as the Rights Plan, dated as
of April 25, 1995 and amended as of February 4, 1997 and June 15, 1999, with
The Chase Manhattan Bank, as rights agent, holders of shares of our common
stock have the right, each referred to as a Right, to purchase from us a unit
consisting of one one-thousandth of a share of Series A Junior Participating
Preferred Stock at a purchase price of $175 per unit subject to adjustment
under the
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specific circumstances described below. At present, each share of common stock
is entitled to one-quarter of one Right. These rights are sometimes referred to
as a poison pill.
The Rights will become exercisable upon the earlier of
o 10 days following a public announcement that a person or group of
affiliated or associated persons, each referred to as an "acquiring
person," has acquired, or obtained the right to acquire, beneficial
ownership of 15% or more of the outstanding shares of our common
stock, which we refer to as the "stock acquisition date," and
o 10 business days following the commencement of a tender offer or
exchange offer that would result in a person or group beneficially
owning 15% or more of the outstanding shares of our common stock.
After the Rights become exercisable, the Rights, other than rights held by an
acquiring person, will entitle the holders to purchase, under some
circumstances, either our common stock or common stock of the potential
acquirer at a substantially reduced price. We are generally entitled to redeem
all but not less than all the Rights at a price of $0.01 per Right at any time
until ten days following the stock acquisition date. The holder of a Right will
have no rights as a stockholder of MSDW, including, without limitation, the
right to vote or to receive dividends, until the Right is exercised. Unless
earlier redeemed, the Rights will expire at the close of business on April 21,
2005.
The foregoing description of the Rights is qualified in its entirety by
reference to the description of the Rights Plan contained in MSDW's
Registration Statement on Form 8-A dated April 26, 1995, as amended by a Form
8-A/A dated May 4, 1995, as further amended by Current Reports on Form 8-K
dated February 14, 1997 and June 15, 1999.
FORMS OF SECURITIES
Each debt security, warrant, purchase contract and unit will be
represented either by a certificate issued in definitive form to a particular
investor or by one or more global securities representing the entire issuance
of securities. Both certificated securities in definitive form and global
securities may be issued either (1) in registered form, where our obligation
runs to the holder of the security named on the face of the security or (2)
subject to the limitations explained below under "--Limitations on Issuance of
Bearer Securities and Bearer Debt Warrants," in bearer form, where our
obligation runs to the bearer of the security. Definitive securities name you
or your nominee as the owner of the security (other than definitive bearer
securities, which name the bearer as owner), and in order to transfer or
exchange these securities or to receive payments other than interest or other
interim payments, you or your nominee must physically deliver the securities to
the trustee, registrar, paying agent or other agent, as applicable. Global
securities name a depositary or its nominee as the owner of the debt
securities, warrants, purchase contracts or units represented by these global
securities (other than global bearer securities, which name the bearer as
owner). The depositary maintains a computerized system that will reflect each
investor's beneficial ownership of the securities through an account maintained
by the investor with its broker/dealer, bank, trust company or other
representative, as we explain more fully below.
Global Securities
Registered Global Securities. We may issue the registered debt securities,
warrants, purchase contracts and units in the form of one or more fully
registered global securities that will be deposited with a depositary or its
nominee identified in the applicable prospectus supplement and registered in
the name of that depositary or nominee. In those cases, one or more registered
global securities will be issued in a denomination or aggregate denominations
equal to the portion of the aggregate principal or face amount of the
securities to be represented by registered global securities. Unless and until
it is exchanged in whole for securities in definitive registered form, a
registered global security may not be transferred except as a whole by and
among the depositary for the registered global security, the nominees of the
depositary or any successors of the depositary or those nominees.
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If not described below, any specific terms of the depositary arrangement
with respect to any securities to be represented by a registered global
security will be described in the prospectus supplement relating to those
securities. We anticipate that the following provisions will apply to all
depositary arrangements.
Ownership of beneficial interests in a registered global security will be
limited to persons, called participants, that have accounts with the depositary
or persons that may hold interests through participants. Upon the issuance of a
registered global security, the depositary will credit, on its book-entry
registration and transfer system, the participants' accounts with the
respective principal or face amounts of the securities beneficially owned by
the participants. Any dealers, underwriters or agents participating in the
distribution of the securities will designate the accounts to be credited.
Ownership of beneficial interests in a registered global security will be shown
on, and the transfer of ownership interests will be effected only through,
records maintained by the depositary, with respect to interests of
participants, and on the records of participants, with respect to interests of
persons holding through participants. The laws of some states may require that
some purchasers of securities take physical delivery of these securities in
definitive form. These laws may impair your ability to own, transfer or pledge
beneficial interests in registered global securities.
So long as the depositary, or its nominee, is the registered owner of a
registered global security, that depositary or its nominee, as the case may be,
will be considered the sole owner or holder of the securities represented by
the registered global security for all purposes under the applicable indenture,
warrant agreement, purchase contract or unit agreement. Except as described
below, owners of beneficial interests in a registered global security will not
be entitled to have the securities represented by the registered global
security registered in their names, will not receive or be entitled to receive
physical delivery of the securities in definitive form and will not be
considered the owners or holders of the securities under the applicable
indenture, warrant agreement, purchase contract or unit agreement. Accordingly,
each person owning a beneficial interest in a registered global security must
rely on the procedures of the depositary for that registered global security
and, if that person is not a participant, on the procedures of the participant
through which the person owns its interest, to exercise any rights of a holder
under the applicable indenture, warrant agreement, purchase contract or unit
agreement. We understand that under existing industry practices, if we request
any action of holders or if an owner of a beneficial interest in a registered
global security desires to give or take any action that a holder is entitled to
give or take under the applicable indenture, warrant agreement, purchase
contract or unit agreement, the depositary for the registered global security
would authorize the participants holding the relevant beneficial interests to
give or take that action, and the participants would authorize beneficial
owners owning through them to give or take that action or would otherwise act
upon the instructions of beneficial owners holding through them.
Principal, premium, if any, and interest payments on debt securities, and
any payments to holders with respect to warrants, purchase contracts or units,
represented by a registered global security registered in the name of a
depositary or its nominee will be made to the depositary or its nominee, as the
case may be, as the registered owner of the registered global security. None of
MSDW, the trustees, the warrant agents, the unit agents or any other agent of
MSDW, agent of the trustees or agent of the warrant agents or unit agents will
have any responsibility or liability for any aspect of the records relating to
payments made on account of beneficial ownership interests in the registered
global security or for maintaining, supervising or reviewing any records
relating to those beneficial ownership interests.
We expect that the depositary for any of the securities represented by a
registered global security, upon receipt of any payment of principal, premium,
interest or other distribution of underlying securities or other property to
holders on that registered global security, will immediately credit
participants' accounts in amounts proportionate to their respective beneficial
interests in that registered global security as shown on the records of the
depositary. We also expect that payments by participants to owners of
beneficial interests in a registered global security held through participants
will be governed by standing customer instructions and customary practices, as
is now the case with the securities held for the accounts of customers in
bearer form or registered in "street name," and will be the responsibility of
those participants.
If the depositary for any of these securities represented by a registered
global security is at any time unwilling or unable to continue as depositary or
ceases to be a clearing agency registered under the Securities Exchange Act of
1934, and a successor depositary registered as a clearing agency under the
Securities Exchange Act of 1934 is not appointed by us within 90 days, we will
issue securities in definitive form in exchange for the registered global
security that had been held by the depositary. In addition, we may at any time
and in our sole discretion decide not to have any of the
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securities represented by one or more registered global securities. If we make
that decision, we will issue securities in definitive form in exchange for all
of the registered global security or securities representing those securities.
Any securities issued in definitive form in exchange for a registered global
security will be registered in the name or names that the depositary gives to
the relevant trustee, warrant agent, unit agent or other relevant agent of ours
or theirs. It is expected that the depositary's instructions will be based upon
directions received by the depositary from participants with respect to
ownership of beneficial interests in the registered global security that had
been held by the depositary.
Bearer Global Securities. The securities may also be issued in the form of
one or more bearer global securities that will be deposited with a common
depositary for the Euroclear System and Clearstream Banking, societe anonyme or
with a nominee for the depositary identified in the prospectus supplement
relating to those securities. The specific terms and procedures, including the
specific terms of the depositary arrangement, with respect to any securities to
be represented by a bearer global security will be described in the prospectus
supplement relating to those securities.
Limitations on Issuance of Bearer Securities and Bearer Debt Warrants
In compliance with United States federal income tax laws and regulations,
bearer securities, including bearer securities in global form, and bearer debt
warrants will not be offered, sold, resold or delivered, directly or
indirectly, in the United States or its possessions or to United States
persons, as defined below, except as otherwise permitted by United States
Treasury Regulations Section 1.163-5(c)(2)(i)(D). Any underwriters, agents or
dealers participating in the offerings of bearer securities or bearer debt
warrants, directly or indirectly, must agree that:
o they will not, in connection with the original issuance of any bearer
securities or during the restricted period, as defined in United
States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), which we
refer to as the "restricted period," offer, sell, resell or deliver,
directly or indirectly, any bearer securities in the United States or
its possessions or to United States persons, other than as permitted
by the applicable Treasury Regulations described above, and
o they will not, at any time, offer, sell, resell or deliver, directly
or indirectly, any bearer debt warrants in the United States or its
possessions or to United States persons, other than as permitted by
the applicable Treasury Regulations described above.
In addition, any underwriters, agents or dealers must have procedures
reasonably designed to ensure that their employees or agents who are directly
engaged in selling bearer securities or bearer debt warrants are aware of the
above restrictions on the offering, sale, resale or delivery of bearer
securities or bearer debt warrants.
Bearer securities, other than temporary global debt securities and bearer
securities that satisfy the requirements of United States Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(3)(iii) and any coupons appertaining thereto will
not be delivered in definitive form, and no interest will be paid thereon,
unless MSDW has received a signed certificate in writing, or an electronic
certificate described in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(3)(ii), stating that on the date of that certificate the
bearer security:
o is owned by a person that is not a United States person;
o is owned by a United States person that (a) is a foreign branch of a
United States financial institution, as defined in applicable United
States Treasury Regulations, which we refer to as a "financial
institution," purchasing for its own account or for resale, or (b) is
acquiring the bearer security through a foreign branch of a United
States financial institution and who holds the bearer security
through that financial institution through that date, and in either
case (a) or (b) above, each of those United States financial
institutions agrees, on its own behalf or through its agent, that
MSDW may be advised that it will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986
and the regulations thereunder; or
o is owned by a United States or foreign financial institution for the
purposes of resale during the restricted period and, in addition, if
the owner of the bearer security is a United States or foreign
financial institution described in this clause, whether or not also
described in the first or second clause above, the financial
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institution certifies that it has not acquired the bearer security
for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
We will not issue bearer debt warrants in definitive form.
We will make payments on bearer securities and bearer debt warrants only
outside the United States and its possessions except as permitted by the above
regulations.
Bearer securities, other than temporary global securities, and any coupons
issued with bearer securities will bear the following legend: "Any United
States person who holds this obligation will be subject to limitations under
the United States income tax laws, including the limitations provided in
sections 165(j) and 1287(a) of the Internal Revenue Code." The sections
referred to in this legend provide that, with exceptions, a United States
person will not be permitted to deduct any loss, and will not be eligible for
capital gain treatment with respect to any gain, realized on the sale, exchange
or redemption of that bearer security or coupon.
As used in the preceding three paragraphs, the term bearer securities
includes bearer securities that are part of units and the term bearer debt
warrants includes bearer debt warrants that are part of units. As used herein,
"United States person" means a citizen or resident of the United States for
United States federal income tax purposes, a corporation or partnership,
including an entity treated as a corporation or partnership for United States
federal income tax purposes, created or organized in or under the laws of the
United States, or any state of the United States or the District of Columbia,
an estate the income of which is subject to United States federal income
taxation regardless of its source, or a trust if a court within the United
States is able to exercise primary supervision of the administration of the
trust and one or more United States persons have the authority to control all
substantial decisions of the trust. In addition, some trusts treated as United
States persons before August 20, 1996 may elect to continue to be so treated to
the extent provided in the Treasury Regulations.
Form of Securities Included in Units
The form of the universal warrant or purchase contract included in a unit
will correspond to the form of the unit and of any other security included in
that unit.
PLAN OF DISTRIBUTION
We may sell the securities being offered by this prospectus in three ways:
(1) through agents, (2) through underwriters and (3) through dealers. Any of
these agents, underwriters or dealers in the United States will include Morgan
Stanley & Co. Incorporated, which we refer to as MS & Co., and/or Dean Witter
Reynolds Inc., which we refer to as DWR, or other affiliates of ours, and any
of these agents, underwriters, or dealers outside the United States will
include Morgan Stanley & Co. International Limited, which we refer to as MSIL,
or other affiliates of ours.
We may designate agents from time to time to solicit offers to purchase
these securities. We will name any such agent, who may be deemed to be an
underwriter as that term is defined in the Securities Act, and state any
commissions we are to pay to that agent in the applicable prospectus
supplement. That agent will be acting on a reasonable efforts basis for the
period of its appointment or, if indicated in the applicable prospectus
supplement, on a firm commitment basis.
If we use any underwriters to offer and sell these securities, we will
enter into an underwriting agreement with those underwriters when we and they
determine the offering price of the securities, and we will include the names
of the underwriters and the terms of the transaction in the applicable
prospectus supplement.
If we use a dealer to offer and sell these securities, we will sell the
securities to the dealer, as principal, and will name the dealer in the
applicable prospectus supplement. The dealer may then resell the securities to
the public at varying prices to be determined by that dealer at the time of
resale.
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Our net proceeds will be the purchase price in the case of sales to a
dealer, the public offering price less discount in the case of sales to an
underwriter or the purchase price less commission in the case of sales through
an agent -- in each case, less other expenses attributable to issuance and
distribution.
In order to facilitate the offering of these securities, the underwriters
may engage in transactions that stabilize, maintain or otherwise affect the
price of these securities or any other securities the prices of which may be
used to determine payments on these securities. Specifically, the underwriters
may over-allot in connection with the offering, creating a short position in
these securities for their own accounts. In addition, to cover over-allotments
or to stabilize the price of these securities or of any other securities, the
underwriters may bid for, and purchase, these securities or any other
securities in the open market. Finally, in any offering of the securities
through a syndicate of underwriters, the underwriting syndicate may reclaim
selling concessions allowed to an underwriter or a dealer for distributing
these securities in the offering, if the syndicate repurchases previously
distributed securities in transactions to cover syndicate short positions, in
stabilization transactions or otherwise. Any of these activities may stabilize
or maintain the market price of these securities above independent market
levels. The underwriters are not required to engage in these activities, and
may end any of these activities at any time.
If so indicated in the applicable prospectus supplement, one or more
firms, including MS & Co., MSIL and DWR, which we refer to as "remarketing
firms," acting as principals for their own accounts or as agents for us, may
offer and sell these securities as part of a remarketing upon their purchase,
in accordance with their terms. We will identify any remarketing firm, the
terms of its agreement, if any, with us and its compensation in the applicable
prospectus supplement.
Remarketing firms, agents, underwriters and dealers may be entitled under
agreements with us to indemnification by us against some civil liabilities,
including liabilities under the Securities Act, and may be customers of, engage
in transactions with or perform services for us in the ordinary course of
business.
If so indicated in the prospectus supplement, we will authorize agents,
underwriters or dealers to solicit offers by some purchasers to purchase debt
securities or warrants, purchase contracts or units, as the case may be, from
us at the public offering price stated in the prospectus supplement under
delayed delivery contracts providing for payment and delivery on a specified
date in the future. These contracts will be subject to only those conditions
described in the prospectus supplement, and the prospectus supplement will
state the commission payable for solicitation of these offers.
Any underwriter, agent or dealer utilized in the initial offering of
securities will not confirm sales to accounts over which it exercises
discretionary authority without the prior specific written approval of its
customer.
MS & Co., MSIL and DWR are wholly-owned subsidiaries of MSDW. Each initial
offering of securities will be conducted in compliance with the requirements of
Rule 2720 of the National Association of Securities Dealers, Inc., which is
commonly referred to as the NASD, regarding a NASD member firm's distributing
the securities of an affiliate. Following the initial distribution of any of
these securities, MS & Co., MSIL, DWR and other affiliates of MSDW may offer
and sell these securities in the course of their business as broker-dealers,
subject, in the case of preferred stock and depositary shares, to obtaining any
necessary approval of the New York Stock Exchange, Inc. for any of these offers
and sales MS & Co. and DWR may make. MS & Co., MSIL, DWR and other affiliates
may act as principals or agents in these transactions and may make any sales at
varying prices related to prevailing market prices at the time of sale or
otherwise. MS & Co., MSIL, DWR and other affiliates may use this prospectus in
connection with these transactions. None of MS & Co., MSIL, DWR or any other
affiliate is obligated to make a market in any of these securities and may
discontinue any market-making activities at any time without notice.
LEGAL MATTERS
The validity of these securities will be passed upon for MSDW by Brown &
Wood LLP, or other counsel who is satisfactory to MS & Co., MSIL or DWR, as the
case may be, and who may be an officer of MSDW. Davis Polk & Wardwell will pass
upon some legal matters relating to these securities for the underwriters.
Davis Polk & Wardwell
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has in the past represented MSDW and continues to represent MSDW on a regular
basis and in a variety of matters, including in connection with its private
equity and leveraged capital activities.
EXPERTS
The consolidated financial statements and financial statement schedules of
MSDW and its subsidiaries, at November 30, 1999 and 1998 and for each of the
three fiscal years in the period ended November 30, 1999, included in and
incorporated by reference in MSDW's Annual Report on Form 10-K for the fiscal
year ended November 30, 1999 have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their reports thereon and incorporated
herein by reference (these reports express an unqualified opinion; the report on
the consolidated financial statements includes an explanatory paragraph for a
change in the method of accounting for certain offering costs of closed-end
funds). These consolidated financial statements have been incorporated by
reference in reliance upon the respective reports given upon the authority of
Deloitte & Touche LLP, as experts in accounting and auditing.
With respect to unaudited interim financial information for the periods
included in any of the Quarterly Reports on Form 10-Q which may be incorporated
herein by reference, Deloitte & Touche LLP have applied limited procedures in
accordance with professional standards for a review of such information.
However, as stated in their report included in any such Quarterly Report on
Form 10-Q and incorporated by reference herein, they did not audit and they do
not express an opinion on such interim financial information. Accordingly, the
degree of reliance on their report on such information should be restricted in
light of the limited nature of the review procedures applied. Deloitte & Touche
LLP are not subject to the liability provisions of Section 11 of the Securities
Act of 1933 for their reports on the unaudited interim financial information
because those reports are not "reports" or a "part" of the registration
statement prepared or certified by an accountant within the meaning of Section
7 and 11 of the Securities Act of 1933.
ERISA MATTERS FOR PENSION PLANS AND INSURANCE COMPANIES
MSDW and some of our affiliates, including MS & Co. and DWR, may each be
considered a "party in interest" within the meaning of the Employee Retirement
Income Security Act of 1974, as amended, which is commonly referred to as
ERISA, or a "disqualified person" within the meaning of the Code with respect
to many employee benefit plans. Prohibited transactions within the meaning of
ERISA or the Code may arise, for example, if the debt securities, warrants or
purchase contracts, or any units including debt securities, warrants or
purchase contracts, are acquired by or with the assets of a pension or other
employee benefit plan with respect to which MS & Co., DWR or any of their
affiliates is a service provider, unless those debt securities, warrants or
purchase contracts, or any units including debt securities, warrants or
purchase contracts, are acquired pursuant to an exemption for transactions
effected on behalf of one of these plans by a "qualified professional asset
manager" or pursuant to any other available exemption. The assets of a pension
or other employee benefit plan may include assets held in the general account
of an insurance company that are deemed to be "plan assets" under ERISA. In
addition, employee benefit plans subject to ERISA, or insurance companies
deemed to be investing ERISA plan assets, that purchase universal warrants or
purchase contracts should consider the possible implications of owning the
securities underlying those instruments in the event of settlement by physical
delivery. Any insurance company or pension or employee benefit plan, or any
person investing the assets of a pension or employee benefit plan, proposing to
invest in the debt securities, warrants or purchase contracts, or any units
including debt securities, warrants or purchase contracts, should consult with
its legal counsel.
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MORGAN STANLEY DEAN WITTER & CO.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following are the expenses of the issuance and distribution of the
securities being registered, all of which will be paid by the registrant. Other
than the registration fee and the NASD filing fee, all of these expenses are
estimated.
Registration fee............................................... $3,168,000
NASD filing fee................................................ 30,500
Blue Sky fees and expenses..................................... 15,000
Rating agency fees............................................. 375,000
Printing and engraving expenses................................ 1,162,500
Legal fees and expenses........................................ 450,000
Accounting fees and expenses................................... 112,500
Unit Agents', Warrant Agents', Trustees' and Preferred Stock
Depositary's fees and expenses (including counsel fees)... 202,500
Total................................................ $5,516,000
Item 15. Indemnification of Officers and Directors
Article VIII of the Amended and Restated Certificate of Incorporation of
MSDW ("Certificate of Incorporation") and Section 6.07 of the Amended and
Restated By-laws of MSDW ("By-laws"), each as amended to date, provide for the
indemnification of MSDW's directors and officers. The Certificate of
Incorporation provides that any person who is a director or officer of MSDW
shall be indemnified by MSDW to the fullest extent permitted from time to time
by applicable law. In addition, the By-laws provide that each person who was or
is made a party or is threatened to be made a party to or is involved in any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he or she
or a person of whom he or she is the legal representative is or was a director
or officer of MSDW or a director or elected officer of a corporation a majority
of the capital stock (other than directors' qualifying shares) of which is
owned directly or indirectly by MSDW (a "Subsidiary") shall be indemnified by
MSDW to the fullest extent permitted by applicable law. The right to
indemnification under the By-laws includes the right to be paid the expenses
incurred in defending a proceeding in advance of its final disposition upon
receipt (unless MSDW upon authorization of the Board of Directors waives said
requirement to the extent permitted by applicable law) of an undertaking by or
on behalf of such person to repay such amount if it shall ultimately be
determined that such person is not entitled to be indemnified by MSDW.
MSDW's By-laws also provide that MSDW may, to the extent authorized from
time to time by the Board of Directors, provide rights to indemnification, and
rights to be paid by MSDW the expenses incurred in defending any proceeding in
advance of its final disposition, to any person who is or was an employee or
agent (other than a director or officer) of MSDW or a Subsidiary and to any
person who is or was serving at the request of MSDW or a Subsidiary as a
director, officer, partner, member, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust or other
enterprise at the request of MSDW or a Subsidiary, to the same extent as the
By-laws provide with respect to indemnification of, and advancement of expenses
for, directors and officers of MSDW.
Under the By-laws, MSDW has the power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, partner, member,
employee or agent of MSDW or of its subsidiary, or of another corporation,
partnership, limited liability company, joint venture, trust or other
enterprise, against any expense, liability or loss whether or not MSDW or its
subsidiary would have the power to indemnify that person against that expense,
liability or loss under the provisions of applicable law.
MSDW has in effect insurance policies in the amount of $125 million for
general officers' and directors' liability insurance and $25 million for
fiduciary liability insurance covering all of our directors and officers in
some of the instances where by law they may not be indemnified by MSDW.
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The forms of Underwriting Agreements and Distribution Agreements filed as
Exhibits 1-a, 1-b, 1-c and 1-d hereto, and incorporated herein by reference,
contain some provisions relating to the indemnification of MSDW's directors,
officers and controlling persons.
Item 16. Exhibits
Exhibit
Number Description
------- -----------
1-a Form of Underwriting Agreements for Debt Securities, Warrants,
Purchase Contracts and Units (previously filed as an exhibit
to MSDW's Registration Statement on Form S-3, Registration No.
333-27919, and incorporated herein by reference).
1-b Form of Underwriting Agreement for Preferred Stock and
Depositary Shares (previously filed as an exhibit to MSDW's
Registration Statement on Form S-3, Registration No.
333-27919, and incorporated herein by reference).
1-c Form of U.S. Distribution Agreement (previously filed as an
exhibit to MSDW's Registration Statement on Form S-3,
Registration No. 333-75289, and incorporated herein by
reference).
1-d Form of Euro Distribution Agreement (previously filed as an
exhibit to MSDW's Registration Statement on Form S-3,
Registration No. 333-75289, and incorporated herein by
reference).
4-a Amended and Restated Certificate of Incorporation of MSDW
(previously filed as an exhibit to MSDW's Annual Report on
Form 10-K dated November 30, 1999 and incorporated herein by
reference).
4-b Form of Certificate of Designation of Offered Preferred Stock
(previously filed as an exhibit to MSDW's Registration
Statement on Form S-3, Registration No. 333-27919, and
incorporated herein by reference).
4-c Form of Certificate of Offered Preferred Stock (previously
filed as an exhibit to MSDW's Registration Statement on Form
S-3, Registration No. 333-27919, and incorporated herein by
reference).
4-d Form of Deposit Agreement (including Form of Depositary
Receipt) (previously filed as an exhibit to MSDW's
Registration Statement on Form S-3, Registration No.
333-27919, and incorporated herein by reference).
4-e Amended and Restated Senior Indenture dated as of May 1, 1999
between Morgan Stanley Dean Witter & Co. and The Chase
Manhattan Bank, Trustee (previously filed as an exhibit to
MSDW's Registration Statement on Form S-3, Registration No.
333-75289, and incorporated herein by reference).
4-f Amended and Restated Subordinated Indenture dated as of May 1,
1999 between Morgan Stanley Dean Witter & Co. and The First
National Bank of Chicago, Trustee (previously filed as an
exhibit to MSDW's Registration Statement on Form S-3,
Registration No. 333-75289, and incorporated herein by
reference).
4-g Form of Floating Rate Senior Note (previously filed as an
exhibit to MSDW's Registration Statement on Form S-3,
Registration No. 333-75289, and incorporated herein by
reference).
4-h Form of Fixed Rate Senior Note (previously filed as an exhibit
to MSDW's Registration Statement on Form S-3, Registration No.
333-75289, and incorporated herein by reference).
4-i Form of Senior Variable Rate Renewable Note (previously filed
as an exhibit to MSDW's Registration Statement on Form S-3,
Registration No. 333-75289, and incorporated herein by
reference).
II-2
<PAGE>
Exhibit
Number Description
------- -----------
4-j Form of Floating Rate Subordinated Note (previously filed as an
exhibit to MSDW's Registration Statement on Form S-3,
Registration No. 333-75289, and incorporated herein by
reference).
4-k Form of Fixed Rate Subordinated Note (previously filed as an
exhibit to MSDW's Registration Statement on Form S-3,
Registration No. 333-75289, and incorporated herein by
reference).
4-l Form of Subordinated Variable Rate Renewable Note (previously
filed as an exhibit to MSDW's Registration Statement on Form
S-3, Registration No. 333-75289, and incorporated herein by
reference).
4-m* Form of Temporary Global Floating Rate Senior Bearer Note.
4-n* Form of Temporary Global Fixed Rate Senior Bearer Note.
4-o* Form of Permanent Global Floating Rate Senior Bearer Note.
4-p* Form of Permanent Global Fixed Rate Senior Bearer Note.
4-q* Form of Euro Fixed Rate Senior Bearer Note.
4-r* Form of Euro Fixed Rate Senior Registered Note.
4-s Form of Floating/Fixed Rate Senior Note (previously filed as an
exhibit to MSDW's Registration Statement on Form S-3,
Registration No. 333-75289, and incorporated herein by
reference).
4-t Form of Senior Dollarized Bull Note (previously filed as an
exhibit to MSDW's Registration Statement on Form S-3,
Registration No. 333-75289, and incorporated herein by
reference).
4-u Form of S&P Indexed (Bull) Note (previously filed as an exhibit
to MSDW's Registration Statement on Form S-3, Registration No.
333-75289, and incorporated herein by reference).
4-v Form of S&P Indexed (Bear) Note (previously filed as an exhibit
to MSDW's Registration Statement on Form S-3, Registration No.
333-75289, and incorporated herein by reference).
4-w* Form of Euro Fixed Rate Subordinated Registered Note.
4-x Form of Fixed Rate Amortizing Senior Note (previously filed
as an exhibit to MSDW's Registration Statement on Form S-3,
Registration No. 333-75289, and incorporated herein by
reference).
4-y Form of Senior Dollarized Yield Curve Note (Bond Basis)
(previously filed as an exhibit to MSDW's Registration
Statement on Form S-3, Registration No. 333-75289, and
incorporated herein by reference).
4-z Form of Senior Dollarized Yield Curve Note (Money Market Basis)
(previously filed as an exhibit to MSDW's Registration
Statement on Form S-3, Registration No. 333-75289, and
incorporated herein by reference).
4-aa* Form of Permanent Global Senior Bull Note.
4-bb* Form of Definitive Floating Rate Senior Bearer Note.
II-3
<PAGE>
Exhibit
Number Description
------- -----------
4-cc Form of Debt Warrant Agreement for Warrants Sold Attached to
Debt Securities (previously filed as an exhibit to MSDW's
Registration Statement on Form S-3, Registration No.
333-75289, and incorporated herein by reference).
4-dd Form of Debt Warrant Agreement for Warrants Sold Alone
(previously filed as an exhibit to MSDW's Registration
Statement on Form S-3, Registration No. 333-75289, and
incorporated herein by reference).
4-ee Form of Warrant Agreement for Universal Warrants (previously
filed as an exhibit to MSDW's Registration Statement on Form
S-3, Registration No. 333-75289, and incorporated herein by
reference).
4-ff Form of Unit Agreement (previously filed as an exhibit to
MSDW's Registration Statement on Form S-3, Registration No.
333-75289, and incorporated herein by reference).
4-gg Form of Put Warrant (included in Exhibit 4-ee) (previously
filed as an exhibit to MSDW's Registration Statement on Form
S-3, Registration No. 333-75289, and incorporated herein by
reference).
4-hh Form of Call Warrant (included in Exhibit 4-ee) (previously
filed as an exhibit to MSDW's Registration Statement on Form
S-3, Registration No. 333-75289, and incorporated herein by
reference).
4-ii Form of Purchase Contract (Issuer Sale) (included in Exhibit
4-ff) (previously filed as an exhibit to MSDW's Registration
Statement on Form S-3, Registration No. 333-75289, and
incorporated herein by reference).
4-jj Form of Purchase Contract (Issuer Purchase) (included in
Exhibit 4-ff) (previously filed as an exhibit to MSDW's
Registration Statement on Form S-3, Registration No.
333-75289, and incorporated herein by reference).
4-kk Form of Unit Certificate (included in Exhibit 4-ff) (previously
filed as an exhibit to MSDW's Registration Statement on Form
S-3, Registration No. 333-75289, and incorporated herein by
reference).
4-ll Form of Pre-Paid Purchase Contract (previously filed as an
exhibit to MSDW's Registration Statement on Form S-3,
Registration No. 333-75289, and incorporated herein by
reference).
4-mm Form of Unit Agreement Without Holders' Obligations (previously
filed as an exhibit to MSDW's Registration Statement on Form
S-3, Registration No. 333-75289, and incorporated herein by
reference).
5* Opinion of Brown & Wood LLP.
12-a Computation of Consolidated Ratio of Earnings to Fixed Charges.
12-b Computation of Consolidated Ratio of Earnings to Fixed Charges
and Preferred Stock Dividends.
23-a Consent of Deloitte & Touche LLP.
23-b* Consent of Brown & Wood LLP (included in Exhibit 5).
24 Powers of Attorney (included on the signature pages).
25-a Statement of Eligibility of The Chase Manhattan Bank, Trustee
under the Amended and Restated Senior Indenture.
II-4
<PAGE>
Exhibit
Number Description
------- -----------
25-b Statement of Eligibility of Bank One Trust Company, N.A., as
successor to The First National Bank of Chicago, Trustee under
the Amended and Restated Subordinated Indenture.
- -------------------
* To be filed by amendment.
Item 17. Undertakings
(1) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(2) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by a
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
(3) The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this registration statement (or
the most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in this registration statement. Notwithstanding
the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in
the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement;
provided, however, that paragraphs (3)(a)(i) and (3)(a)(ii) do not apply
if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this
registration statement.
II-5
<PAGE>
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it
meets all the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in The City of New York, State of New York, as of this 7th day
of April, 2000.
MORGAN STANLEY DEAN WITTER & CO.
By: /s/ Philip J. Purcell
--------------------------------------
Name: Philip J. Purcell
Title: Chairman of the Board and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each person whose signature
appears below hereby constitutes and appoints Donald G. Kempf, Jr., Robert G.
Scott , Ronald T. Carman, Ralph L. Pellecchio, Martin M. Cohen and William J.
O'Shaughnessy, Jr., and each of them singly, his or her true and lawful
attorney-in-fact and agent with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign any and all amendments, including post-effective
amendments, to this Registration Statement (any of which amendments may make
such changes and additions to this Registration Statement as such
attorneys-in-fact may deem necessary or appropriate) and to file the same, with
all exhibits thereto, and any other documents that may be required in
connection therewith, granting unto said attorneys-in-fact and agents full
power and authority to be done in and about the premises, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or their
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirement of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons on
behalf of the Registrant and in the capacities indicated as of this 7th day of
April, 2000.
Signature Title
--------- -----
/s/ Philip J. Purcell
- --------------------------------------- Chairman of the Board and Chief
Philip J. Purcell Executive Officer
/s/ John J. Mack
- --------------------------------------- President, Chief Operating Officer
John J. Mack and Director
/s/ Robert G. Scott
- --------------------------------------- Executive Vice President and Chief
Robert G. Scott Financial Officer (Principal
Financial Officer)
/s/ Joanne Pace
- --------------------------------------- Controller
Joanne Pace (Principal Accounting Officer)
/s/ Robert P. Bauman
- --------------------------------------- Director
Robert P. Bauman
II-7
<PAGE>
/s/ Edward A. Brennan
- --------------------------------------- Director
Edward A. Brennan
/s/ C. Robert Kidder
- --------------------------------------- Director
C. Robert Kidder
/s/ Charles F. Knight
- --------------------------------------- Director
Charles F. Knight
/s/ Miles L. Marsh
- --------------------------------------- Director
Miles L. Marsh
/s/ Michael A. Miles
- --------------------------------------- Director
Michael A. Miles
/s/ Clarence B. Rogers, Jr.
- --------------------------------------- Director
Clarence B. Rogers, Jr.
/s/ Laura D'Andrea Tyson
- --------------------------------------- Director
Laura D'Andrea Tyson
II-8
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
------- -----------
4-m* Form of Temporary Global Floating Rate Senior Bearer Note.
4-n* Form of Temporary Global Fixed Rate Senior Bearer Note.
4-o* Form of Permanent Global Floating Rate Senior Bearer Note.
4-p* Form of Permanent Global Fixed Rate Senior Bearer Note.
4-q* Form of Euro Fixed Rate Senior Bearer Note.
4-r* Form of Euro Fixed Rate Senior Registered Note.
4-w* Form of Euro Fixed Rate Subordinated Registered Note.
4-aa* Form of Permanent Global Senior Bull Note.
4-bb* Form of Definitive Floating Rate Senior Bearer Note.
5* Opinion of Brown & Wood LLP.
12-a Computation of Consolidated Ratio of Earnings to Fixed Charges.
12-b Computation of Consolidated Ratio of Earnings to Fixed Charges
and Preferred Stock Dividends.
23-a Consent of Deloitte & Touche LLP.
23-b* Consent of Brown & Wood LLP (included in Exhibit 5).
24 Powers of Attorney (included on the signature pages).
25-a Statement of Eligibility of The Chase Manhattan Bank, Trustee
under the Amended and Restated Senior Indenture.
25-b Statement of Eligibility of Bank One Trust Company, N.A., as
successor to The First National Bank of Chicago, Trustee under
the Amended and Restated Subordinated Indenture.
- -------------------
* To be filed by amendment.
II-9
Exhibit 12a
MORGAN STANLEY DEAN WITTER & CO.
Ratio of Earnings to Fixed Charges
(Dollars in millions)
Fiscal Year
1999 1998 1997
---- ---- ----
Earnings:
Income before income taxes(l) $7,728 $5,385 $4,274
Add: Fixed charges, net 11,499 13,614 10,898
------ ------ ------
Income before income taxes and
fixed charges, net
$19,227 $18,999 $15,172
======= ======= =======
Fixed charges:
Total interest expense $11,390 $13,514 $10,806
Interest factor in rents 109 100 92
--- --- --
Total fixed charges $11,499 $13,614 $10,898
======= ======= =======
Ratio of earnings to fixed charges 1.7 1.4 1.4
(1) 1998 Income before income taxes does not include a cumulative effect of
accounting change.
"Earnings" consist of income before income taxes and fixed charges. "Fixed
charges" consist of interest costs, including interest on deposits, and that
portion of rent expense estimated to be representative of the interest factor.
The preferred stock dividend amounts represent pre-tax earnings required to
cover dividends on preferred stock.
Exhibit 12.b
MORGAN STANLEY DEAN WITTER & CO.
Ratio of Earnings to Fixed Charges and Preferred Stock Dividends
(Dollars in millions)
Fiscal Year
1999 1998 1997
---- ---- ----
Earnings:
Income before income taxes(l) $7,728 $5,385 $4,274
Add: Fixed charges, net 11,499 13,614 10,898
------ ------ ------
Income before income taxes and
fixed charges, net
$19,227 $18,999 $15,172
======= ======= =======
Fixed charges:
Total interest expense $11,390 $13,514 $10,806
Interest factor in rents 109 100 92
Preferred stock dividends 72 87 110
--- --- ---
Total fixed charges $11,571 $13,701 $11,008
======= ======= =======
Ratio of earnings to fixed charges 1.7 1.4 1.4
(1) 1998 Income before income taxes does not include a cumulative effect of
accounting change.
"Earnings" consist of income before income taxes and fixed charges. "Fixed
charges" consist of interest costs, including interest on deposits, and that
portion of rent expense estimated to be representative of the interest factor.
The preferred stock dividend amounts represent pre-tax earnings required to
cover dividends on preferred stock.
EXHIBIT 23-a
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
(related to $12,000,000,000 of debt securities, units, warrants, purchase
contracts, depositary shares and preferred stock) of Morgan Stanley Dean Witter
& Co. (the "Registrant") on Form S-3 of our reports dated January 21, 2000,
appearing in and incorporated by reference in the Annual Report on Form 10-K of
the Registrant for the fiscal year ended November 30, 1999 (these reports
express an unqualified opinion; the report on the consolidated financial
statements includes an explanatory paragraph for a change in the method of
accounting for certain offering costs of closed-end funds), and to the
reference to us under the heading "Experts" in the Prospectus, which is part of
this Registration Statement.
/s/ Deloitte & Touche LLP
New York, New York
April 7, 2000
EXHIBIT 25-a
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------
Morgan Stanley Dean Witter & Co.
(Exact name of obligor as specified in its charter)
Delaware 36-3145972
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1585 Broadway
New York, New York 10036
(Address of principal executive offices) (Zip Code)
Debt Securities
(Title of the indenture securities)
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
New York State Banking Department, State House, Albany, New York 12110.
Board of Governors of the Federal Reserve System, Washington, D.C., 20551.
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street, New
York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect,
including the Organization Certificate and the Certificates of Amendment dated
February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form
T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996,
in connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being contained
in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of New York and State of New York, on the 5th day
of April, 2000.
THE CHASE MANHATTAN BANK
By /s/ T.J. Foley
----------------------------------
/s/ T.J. Foley
Vice President
- 3 -
<PAGE>
Exhibit 7 to Form T-l
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business December 31, 1999, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
in Millions
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ....................................... $ 13,271
Interest-bearing balances ............................... 30,165
Securities:
Held to maturity securities .................................. 724
Available for sale securities ................................ 54,770
Federal funds sold and securities purchased under
agreements to resell .................................... 26,694
Loans and lease financing receivables:
Loans and leases, net of unearned income $132,814
Less: Allowance for loan and lease losses 2,254
Less: Allocated transfer risk reserve ...... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve .................................. 130,560
Trading Assets ............................................... 53,619
Premises and fixed assets (including capitalized
leases) ................................................. 3,359
Other real estate owned ...................................... 29
Investments in unconsolidated subsidiaries and
associated companies .................................... 186
Customers' liability to this bank on acceptances
outstanding ............................................. 608
Intangible assets ............................................ 3,659
Other assets ................................................. 14,554
--------
TOTAL ASSETS ................................................. $332,198
========
-4-
<PAGE>
LIABILITIES
Deposits
In domestic offices ..................................... $102,421
Noninterest-bearing ............................$ 41,580
Interest-bearing ............................... 60,841
In foreign offices, Edge and Agreement
subsidiaries and IBF's .................................. 108,233
Noninterest-bearing .................................$ 6,061
Interest-bearing ............................... 102,172
Federal funds purchased and securities sold under agree-
ments to repurchase .......................................... 47,425
Demand notes issued to the U.S. Treasury ..................... 100
Trading liabilities .......................................... 33,626
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less ........... 3,964
With a remaining maturity of more than one year
through three years ................................ 14
With a remaining maturity of more than three years ...... 99
Bank's liability on acceptances executed and outstanding ..... 608
Subordinated notes and debentures ............................ 5,430
Other liabilities ............................................ 11,886
TOTAL LIABILITIES ............................................ 313,806
EQUITY CAPITAL
Perpetual preferred stock and related surplus ................ 0
Common stock ................................................. 1,211
Surplus (exclude all surplus related to preferred stock) ..... 11,066
Undivided profits and capital reserves ....................... 7,376
Net unrealized holding gains (losses)
on available-for-sale securities ............................. (1,277)
Accumulated net gains (losses) on cash flow hedges ........... 0
Cumulative foreign currency translation adjustments .......... 16
TOTAL EQUITY CAPITAL ......................................... 18,392
--------
TOTAL LIABILITIES AND EQUITY CAPITAL ......................... $332,198
========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the
appropriate Federal regulatory authority and is true to the
best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
WILLIAM B. HARRISON, JR. )
HELENE L. KAPLAN ) DIRECTORS
HENRY B. SCHACHT )
-5-
EXHIBIT 25-b
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) [_]
--------------------
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
A National Banking Association 31-0838515
(I.R.S. employer
identification number)
100 East Broad Street, Columbus, Ohio 43271-0181
(Address of principal executive offices) (Zip Code)
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
100 East Broad Street
Columbus, Ohio 43271-0181
Attn: John R. Prendiville, Senior Counsel, (312) 661-5223
(Name, address and telephone number of agent for service)
--------------------
MORGAN STANLEY DEAN WITTER & CO.
(Exact name of obligor as specified in its charter)
Delaware 36-3145972
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
1585 Broadway
New York, New York 10036
(Address of principal executive offices) (Zip Code)
Debt Securities
(Title of Indenture Securities)
<PAGE>
Item 1. General Information. Furnish the following
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C.;
Federal Deposit Insurance Corporation,
Washington, D.C.; The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations With the Obligor. If the obligor
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a part
of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.
2. A copy of the certificate of authority of the
trustee to commence business.
3. A copy of the authorization of the trustee to
exercise corporate trust powers.
4. A copy of the existing by-laws of the trustee.
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
<PAGE>
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bank One Trust Company, National Association, a
national banking association organized and existing under the laws of
the United States of America, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto
duly authorized, all in the City of Chicago and State of Illinois, on
the 3rd day of April, 2000.
Bank One Trust Company, National Association,
Trustee
By /s/ John R. Prendiville
------------------------------
John R. Prendiville
Vice President
<PAGE>
EXHIBIT 1
A COPY OF THE ARTICLES OF ASSOCIATION OF THE
TRUSTEE NOW IN EFFECT
AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
of
BANK ONE TRUST COMPANY, National Association
FIRST. The title of this Association shall be BANK ONE TRUST COMPANY, National
Association.
SECOND. The main office of the Association shall be in the City of Columbus,
County of Franklin, State of Ohio.
The business of the Association will be limited to the fiduciary powers and the
support of activities incidental to the exercise of those powers. The
Association will not expand or alter its business beyond that stated in this
article without the prior approval of the Comptroller of the Currency.
THIRD. The Board of Directors of this Association shall consist of not less
than five nor more than twenty-five persons, the exact number to be fixed and
determined from time to time by resolution of a majority of the full Board of
Directors or by resolution of a majority of the shareholders at any annual or
special meeting thereof. Each director shall own common or preferred stock of
the Association, or of a holding company owning the Association, with an
aggregate par, fair market or equity value of not less than $1,000, as of
either (i) the date of purchase, (ii) the date the person became a director, or
(iii) the date of that person's most recent election to the Board of Directors,
whichever is more recent. Any combination of common or preferred stock of the
Association or holding company may be used.
Any vacancy in the Board of Directors may be filled by action of a majority of
the remaining directors between meetings of shareholders. The Board of
Directors may not increase the number of directors between meetings of
shareholders to a number which: (1) exceeds by more than two the number of
directors last elected by shareholders where the number was 15 or less; or (2)
exceeds by more than four the number of directors last elected by shareholders
where the number was 16 or more, but in no event shall the number of directors
exceed 25.
Terms of directors, including directors selected to fill vacancies, shall
expire at the next regular meeting of shareholders at which directors are
elected, unless the directors resign or are removed from office.
Despite the expiration of a director's term, the director shall continue to
serve until his or her successor is elected and qualifies or until there is a
decrease in the number of directors and his or her position is eliminated.
Honorary or advisory members of the Board of Directors, without voting power or
power of final decision in matters concerning the business of the Association,
may be appointed by resolution of
<PAGE>
a majority of the full Board of Directors, or by resolution of shareholders at
any annual or special meeting. Honorary or advisory directors shall not be
counted to determine the number of directors of the Association or the presence
of a quorum in connection with any board action, and shall not be required to
own qualifying shares.
FOURTH. There shall be an annual meeting of the shareholders to elect directors
and transact whatever other business may be brought before the meeting. It
shall be held at the main office or any other convenient place the Board of
Directors may designate, on the day of each year specified therefor in the
Bylaws or, if that day falls on a legal holiday in the state in which the
Association is located, on the next following banking day. If no election is
held on the day fixed or in the event of a legal holiday on the following
banking day, an election may be held on any subsequent day within 60 days of
the day fixed, to be designated by the Board of Directors or, if the directors
fail to fix the day, by shareholders representing two-thirds of the shares
issued and outstanding. In all cases at least 10 days advance notice of the
meeting shall be given to the shareholders by first class mail.
In all elections of directors, the number of votes each common shareholder may
cast will be determined by multiplying the number of shares such shareholder
owns by the number of directors to be elected. Those votes may be cumulated and
cast for a single candidate or may be distributed among two or more candidates
in the manner selected by the shareholder. On all other questions, each common
shareholder shall be entitled to one vote for each share of stock held by such
shareholder. If the issuance of preferred stock with voting rights has been
authorized by a vote of shareholders owning a majority of the common stock of
the association, preferred shareholders will have cumulative voting rights and
will be included within the same class as common shareholders, for purposes of
elections of directors.
A director may resign at any time by delivering written notice to the Board of
Directors, its chairperson, or to the Association, which resignation shall be
effective when the notice is delivered unless the notice specifies a later
effective date.
A director may be removed by shareholders at a meeting called to remove him or
her, when notice of the meeting stating that the purpose or one of the purposes
is to remove him or her is provided, if there is a failure to fulfill one of
the affirmative requirements for qualification, or for cause, provided,
however, that a director may not be removed if the number of votes sufficient
to elect him or her under cumulative voting is voted against his or her
removal.
FIFTH. The authorized amount of capital stock of this Association shall be
eighty thousand shares of common stock of the par value of ten dollars ($10.00)
each; but said capital stock may be increased or decreased from time to time,
according to the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the Association shall
have any preemptive or preferential right of subscription to any shares of any
class of stock of the Association, whether now or hereafter authorized, or to
any obligations convertible into stock of the Association, issued or sold, nor
any right of subscription to any thereof other than such, if any, as the Board
of Directors, in its discretion, may from time to time determine and at such
price as the Board of Directors may from time to time fix.
<PAGE>
Unless otherwise specified in the Articles of Association or required by law,
(1) all matters requiring shareholder action, including amendments to the
Articles of Association, must be approved by shareholders owning a majority
voting interest in the outstanding voting stock, and (2) each shareholder shall
be entitled to one vote per share.
Unless otherwise specified in the Articles of Association or required by law,
all shares of voting stock shall be voted together as a class on any matters
requiring shareholder approval. If a proposed amendment would affect two or
more classes or series in the same or a substantially similar way, all the
classes or series so affected must vote together as a single voting group on
the proposed amendment.
Shares of the same class or series may be issued as a dividend on a pro rata
basis and without consideration. Shares of another class or series may be
issued as share dividends in respect of a class or series of stock if approved
by a majority of the votes entitled to be cast by the class or series to be
issued unless there are no outstanding shares of the class or series to be
issued. Unless otherwise provided by the Board of Directors, the record date
for determining shareholders entitled to a share dividend shall be the date the
Board of Directors authorizes the share dividend.
Unless otherwise provided in the Bylaws, the record date for determining
shareholders entitled to notice of and to vote at any meeting is the close of
business on the day before the first notice is mailed or otherwise sent to the
shareholders, provided that in no event may a record date be more than 70 days
before the meeting.
If a shareholder is entitled to fractional shares pursuant to preemptive
rights, a stock dividend, consolidation or merger, reverse stock split or
otherwise, the Association may: (a) issue fractional shares or; (b) in lieu of
the issuance of fractional shares, issue script or warrants entitling the
holder to receive a full share upon surrendering enough script or warrants to
equal a full share; (c) if there is an established and active market in the
Association's stock, make reasonable arrangements to provide the shareholder
with an opportunity to realize a fair price through sale of the fraction, or
purchase of the additional fraction required for a full share; (d) remit the
cash equivalent of the fraction to the shareholder; or (e) sell full shares
representing all the fractions at public auction or to the highest bidder after
having solicited and received sealed bids from at least three licensed stock
brokers, and distribute the proceeds pro rata to shareholders who otherwise
would be entitled to the fractional shares. The holder of a fractional share is
entitled to exercise the rights for shareholder, including the right to vote,
to receive dividends, and to participate in the assets of the Association upon
liquidation, in proportion to the fractional interest. The holder of script or
warrants is not entitled to any of these rights unless the script or warrants
explicitly provide for such rights. The script or warrants may be subject to
such additional conditions as: (1) that the script or warrants will become void
if not exchanged for full shares before a specified date; and (2) that the
shares for which the script or warrants are exchangeable may be sold at the
option of the Association and the proceeds paid to scriptholders.
The Association, at any time and from time to time, may authorize and issue
debt obligations, whether or not subordinated, without the approval of the
shareholders. Obligations classified as debt, whether or not subordinated,
which may be issued by the Association without the approval of shareholders, do
not carry voting rights on any issue, including an increase or decrease in the
aggregate number of the securities, or the exchange or reclassification of all
or part of securities into securities of another class or series.
<PAGE>
SIXTH. The Board of Directors shall appoint one of its members president of
this Association, and one of its members chairperson of the board and shall
have the power to appoint one or more vice presidents, a secretary who shall
keep minutes of the directors' and shareholders' meetings and be responsible
for authenticating the records of the Association, and such other officers and
employees as may be required to transact the business of this Association. A
duly appointed officer may appoint one or more officers or assistant officers
if authorized by the Board of Directors in accordance with the Bylaws.
The Board of Directors shall have the power to:
(1) Define the duties of the officers, employees, and agents of the
Association.
(2) Delegate the performance of its duties, but not the responsibility for its
duties, to the officers, employees, and agents of the Association.
(3) Fix the compensation and enter into employment contracts with its
officers and employees upon reasonable terms and conditions consistent
with applicable law.
(4) Dismiss officers and employees.
(5) Require bonds from officers and employees and to fix the penalty thereof.
(6) Ratify written policies authorized by the Association's management or
committees of the board.
(7) Regulate the manner in which any increase or decrease of the capital
of the Association shall be made, provided that nothing herein shall
restrict the power of shareholders to increase or decrease the capital
of the association in accordance with law, and nothing shall raise or
lower from two-thirds the percentage for shareholder approval to
increase or reduce the capital.
(8) Manage and administer the business and affairs of the Association.
(9) Adopt initial Bylaws, not inconsistent with law or the Articles of
Association, for managing the business and regulating the affairs of
the Association.
(10) Amend or repeal Bylaws, except to the extent that the Articles of
Association reserve this power in whole or in part to shareholders.
(11) Make contracts.
(12) Generally perform all acts that are legal for a Board of Directors to
perform.
SEVENTH. The Board of Directors shall have the power to change the location of
the main office of this Association to any other place within the limits of the
City of Columbus, State of Ohio, without the approval of the shareholders; and
shall have the power to change the location of the main office of this
Association to any other place outside the limits of the City of Columbus,
State of Ohio, but not more than thirty miles beyond such limits, with the
affirmative
<PAGE>
vote of shareholders owning two-thirds of the stock of the Association, subject
to receipt of a certificate of approval from the Comptroller of the Currency.
The Board of Directors shall have the power to establish or change the location
of any branch or branches of the Association to any other location permitted
under applicable law without the approval of the shareholders, subject to
approval by the Office of the Comptroller of the Currency. The Board of
Directors shall have the power to establish or change the location of any
nonbranch office or facility of the Association without the approval of the
shareholders.
EIGHTH. The corporate existence of this Association shall continue until
termination according to the laws of the United States.
NINTH. The Board of Directors of this Association, or any shareholders owning,
in the aggregate, not less than 20 percent of the stock of this Association,
may call a special meeting of shareholders at any time. Unless otherwise
provided by the Bylaws or the laws of the United States, or waived by
shareholders, a notice of the time, place, and purpose of every annual and
special meeting of the shareholders shall be given by first-class mail, postage
prepaid, mailed at least 10, and no more than 60, days prior to the date of the
meeting to each shareholder of record at his/her address as shown upon the
books of this Association. Unless otherwise provided by the Bylaws, any action
requiring approval of shareholders must be effected at a duly called annual or
special meeting.
TENTH. The Association shall provide indemnification as set forth below:
Every person who is or was a Director, officer or employee of the Association
or of any other corporation which he served as a Director, officer or employee
at the request of the Association as part of his regularly assigned duties may
be indemnified by the Association in accordance with the provisions of this
Article against all liability (including, without limitation, judgments, fines,
penalties, and settlements) and all reasonable expenses (including, without
limitation, attorneys' fees and investigative expenses) that may be incurred or
paid by him in connection with any claim, action, suit or proceeding, whether
civil, criminal or administrative (all referred to hereafter in this Article as
"Claims") or in connection with any appeal relating thereto in which he may
become involved as a party or otherwise or with which he may be threatened by
reason of his being or having been a Director, officer or employee of the
Association or such other corporation, or by reason of any action taken or
omitted by him in his capacity as such Director, officer or employee, whether
or not he continues to be such at the time such liability or expenses are
incurred; provided that nothing contained in this Article shall be construed to
permit indemnification of any such person who is adjudged guilty of, or liable
for, willful misconduct, gross neglect of duty or criminal acts, unless, at the
time such indemnification is sought, such indemnification in such instance is
permissible under applicable law and regulations, including published rulings
of the Comptroller of the Currency or other appropriate supervisory or
regulatory authority; and provided further that there shall be no
indemnification of Directors, officers, or employees against expenses,
penalties, or other payments incurred in an administrative proceeding or action
instituted by an appropriate regulatory agency which proceeding or action
results in a final order assessing civil money penalties or requiring
affirmative action by an individual or individuals in the form of payments to
the Association.
Every person who may be indemnified under the provisions of this Article and
who has been wholly successful on the merits with respect to any Claim shall be
entitled to indemnification as
<PAGE>
of right. Except as provided in the preceding sentence, any indemnification
under this Article shall be at the sole discretion of the Board of Directors
and shall be made only if the Board of Directors or the Executive Committee
acting by a quorum consisting of Directors who are not parties to such Claim
shall find or if independent legal counsel (who may be the regular counsel of
the Association) selected by the Board of Directors or Executive Committee
whether or not a disinterested quorum exists shall render their opinion that in
view of all of the circumstances then surrounding the Claim, such
indemnification is equitable and in the best interests of the Association.
Among the circumstances to be taken into consideration in arriving at such a
finding or opinion is the existence or non-existence of a contract of insurance
or indemnity under which the Association would be wholly or partially
reimbursed for such indemnification, but the existence or non-existence of such
insurance is not the sole circumstance to be considered nor shall it be wholly
determinative of whether such indemnification shall be made. In addition to
such finding or opinion, no indemnification under this Article shall be made
unless the Board of Directors or the Executive Committee acting by a quorum
consisting of Directors who are not parties to such Claim shall find or if
independent legal counsel (who may be the regular counsel of the Association)
selected by the Board of Directors or Executive Committee whether or not a
disinterested quorum exists shall render their opinion that the Directors,
officer or employee acted in good faith in what he reasonably believed to be
the best interests of the Association or such other corporation and further in
the case of any criminal action or proceeding, that the Director, officer or
employee reasonably believed his conduct to be lawful. Determination of any
Claim by judgment adverse to a Director, officer or employee by settlement with
or without Court approval or conviction upon a plea of guilty or of nolo
contendere or its equivalent shall not create a presumption that a Director,
officer or employee failed to meet the standards of conduct set forth in this
Article. Expenses incurred with respect to any Claim may be advanced by the
Association prior to the final disposition thereof upon receipt of an
undertaking satisfactory to the Association by or on behalf of the recipient to
repay such amount unless it is ultimately determined that he is entitled to
indemnification under this Article.
The rights of indemnification provided in this Article shall be in addition to
any rights to which any Director, officer or employee may otherwise be entitled
by contract or as a matter of law. Every person who shall act as a Director,
officer or employee of this Association shall be conclusively presumed to be
doing so in reliance upon the right of indemnification provided for in this
Article.
ELEVENTH. These Articles of Association may be amended at any regular or
special meeting of the shareholders by the affirmative vote of the holders of a
majority of the stock of this Association, unless the vote of the holders of a
greater amount of stock is required by law, and in that case by the vote of the
holders of such greater amount. The Association's Board of Directors may
propose one or more amendments to the Articles of Association for submission to
the shareholders.
<PAGE>
EXHIBIT 2
A COPY OF THE CERTIFICATE OF AUTHORITY OF THE
TRUSTEE TO COMMENCE BUSINESS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio, (Charter
No. 16235) is a National Banking Association formed under the laws of the
United States and is authorized thereunder to transact the business of banking
on the date of this Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at
the Treasury Department in the City of
Washington and District of Columbia, this
15th day of September, 1999.
/s/ John D. Hawke, Jr.
----------------------------
Comptroller of the Currency
<PAGE>
EXHIBIT 3
A COPY OF THE AUTHORIZATION OF THE TRUSTEE
TO EXERCISE CORPORATE TRUST POWERS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio, (Charter
No. 16235) was granted, under the hand and seal of the Comptroller, the right to
act in all fiduciary capacities authorized under the provisions of the Act of
Congress approved September 28, 1962, 76 Stat. 668, 12 U.S.C. 92a, and that the
authority so granted remains in full force and effect on the date of this
Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at
the Treasury Department in the City of
Washington and District of Columbia, this
15th day of September, 1999.
/s/ John D. Hawke, Jr.
----------------------------
Comptroller of the Currency
<PAGE>
EXHIBIT 4
A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE
BANK ONE TRUST COMPANY, National Association
BY-LAWS
ARTICLE I
MEETINGS OF SHAREHOLDERS
SECTION 1.01. ANNUAL MEETING. The regular annual meeting of the shareholders of
the Bank for the election of Directors and for the transaction of such business
as may properly come before the meeting shall be held at its main office, or
other convenient place duly authorized by the Board of Directors, on the same
day upon which any regular or special Board meeting is held from and including
the first Monday of January to, and including, the fourth Monday of February of
each year, or on the next succeeding banking day, if the day fixed falls on a
legal holiday. If from any cause, an election of Directors is not made on the
day fixed for the regular meeting of the shareholders or, in the event of a
legal holiday, on the next succeeding banking day, the Board of Directors shall
order the election to be held on some subsequent day, as soon thereafter as
practicable, according to the provisions of law; and notice thereof shall be
given in the manner herein provided for the annual meeting. Notice of such
annual meeting shall be given by or under the direction of the Secretary, or
such other officer as may be designated by the Chief Executive Officer, by
first-class mail, postage prepaid, to all shareholders of record of the Bank at
their respective addresses as shown upon the books of the Bank mailed not less
than ten days prior to the date fixed for such meeting.
SECTION 1.02. SPECIAL MEETINGS. A special meeting of the shareholders of the
Bank may be called at any time by the Board of Directors or by any three or
more shareholders owning, in the aggregate, not less than ten percent of the
stock of the Bank. Notice of any special meeting of the shareholders called by
the Board of Directors, stating the time, place and purpose of the meeting,
shall be given by or under the direction of the Secretary, or such other
officer as is designated by the Chief Executive Officer, by first-class mail,
postage prepaid, to all shareholders of record of the Bank at their respective
addresses as shown upon the books of the Bank mailed not less than ten days
prior to the date fixed for such meeting. Any special meeting of shareholders
shall be conducted and its proceedings recorded in the manner prescribed in
these By-Laws for annual meetings of shareholders.
SECTION 1.03. SECRETARY OF MEETING OF SHAREHOLDERS. The Board of Directors may
designate a person to be the secretary of the meeting of shareholders. In the
absence of a presiding officer, as designated by these By-Laws, the Board of
Directors may designate a person to act as the presiding officer. In the event
the Board of Directors fails to designate a person to preside at a meeting of
shareholders and a secretary of such meeting, the shareholders present or
represented shall elect a person to preside and a person to serve as secretary
of the meeting. The secretary of the meeting of shareholders shall cause the
returns made by the judges of election and other proceedings to be recorded in
the minute books of the Bank. The presiding officer shall notify the
Directors-elect of their election and to meet forthwith for the organization of
the new Board of Directors. The minutes of the meeting shall be signed by the
presiding officer and the secretary designated for the meeting.
SECTION 1.04. JUDGES OF ELECTION. The Board of Directors may appoint as many as
three shareholders to be judges of the election, who shall hold and conduct the
same, and who shall, after the election has been held, notify, in writing over
their signatures, the secretary of the
<PAGE>
meeting of shareholders of the result thereof and the names of the Directors
elected; provided, however, that upon failure for any reason of any judge or
judges of election, so appointed by the Directors, to serve, the presiding
officer of the meeting shall appoint other shareholders or their proxies to
fill the vacancies. The judges of election, at the request of the chairman of
the meeting, shall act as tellers of any other vote by ballot taken at such
meeting, and shall notify, in writing over their signature, the secretary of
the Board of Directors of the result thereof.
SECTION 1.05. PROXIES. In all elections of Directors, each shareholder of
record, who is qualified to vote under the provisions of Federal Law, shall
have the right to vote the number of shares of record in such shareholder's
name for as many persons as there are Directors to be elected, or to cumulate
such shares as provided by Federal Law. In deciding all other questions at
meetings of shareholders, each shareholder shall be entitled to one vote on
each share of stock of record in such shareholder's name. Shareholders may vote
by proxy duly authorized in writing. All proxies used at the annual meeting
shall be secured for that meeting only, or any adjournment thereof, and shall
be dated, if not dated by the shareholder, as of the date of the receipt
thereof. No officer or employee of this Bank may act as proxy.
SECTION 1.06. QUORUM. Holders of record of a majority of the shares of the
capital stock of the Bank, eligible to be voted, present either in person or by
proxy, shall constitute a quorum for the transaction of business at any meeting
of shareholders, but shareholders present at any meeting and constituting less
than a quorum may, without further notice, adjourn the meeting from time to
time until a quorum is obtained. A majority of the votes cast shall decide
every question or matter submitted to the shareholders at any meeting, unless
otherwise provided by law or by the Articles of Association.
ARTICLE II
DIRECTORS
SECTION 2.01. QUALIFICATIONS. Each Director shall have the qualifications
prescribed by law. No person elected as a Director may exercise any of the
powers of office until such Director has taken the oath of such office.
SECTION 2.02. VACANCIES. Directors of the Bank shall hold office for one year
or until their successors are elected and qualified. Any vacancy in the Board
shall be filled by appointment of the remaining Directors, and any Director so
appointed shall hold office until the next election.
SECTION 2.03. ORGANIZATION MEETING. The Directors elected by the shareholders
shall meet for organization of the new Board of Directors at the time and place
fixed by the presiding officer of the annual meeting. If at the time fixed for
such meeting there is no quorum present, the Directors in attendance may
adjourn from time to time until a quorum is obtained. A majority of the number
of Directors elected by the shareholders shall constitute a quorum for the
transaction of business.
<PAGE>
SECTION 2.04. REGULAR MEETINGS. The regular meetings of the Board of Directors
shall be held at such date, time and place as the Board may previously
designate, or should the Board fail to so designate, at such date, time and
place as the Chairman of the Board, Chief Executive Officer, or President may
fix. Whenever a quorum is not present, the Directors in attendance shall
adjourn the meeting to a time not later than the date fixed by the By-Laws for
the next succeeding regular meeting of the Board. Members of the Board of
Directors may participate in such meetings through use of conference telephone
or similar communications equipment, so long as all members participating in
such meetings can hear one another.
SECTION 2.05. SPECIAL MEETINGS. Special meetings of the Board of Directors
shall be held at the call of the Chairman of the Board, Chief Executive
Officer, or President, or at the request of two or more Directors. Any special
meeting may be held at such place and at such time as may be fixed in the call.
Written or oral notice shall be given to each Director not later than the day
next preceding the day on which the special meeting is to be held, which notice
may be waived in writing. The presence of a Director at any meeting of the
Board of Directors shall be deemed a waiver of notice thereof by such Director.
Whenever a quorum is not present, the Directors in attendance shall adjourn the
special meeting from day to day until a quorum is obtained. Members of the
Board of Directors may participate in such meetings through use of conference
telephone or similar communications equipment, so long as all members
participating in such meetings can hear one another.
SECTION 2.06. QUORUM. A majority of the Directors shall constitute a quorum at
any meeting, except when otherwise provided by law; but a lesser number may
adjourn any meeting, from time-to-time, and the meeting may be held, as
adjourned, without further notice. When, however, less than a quorum as herein
defined, but at least one-third and not less than two of the authorized number
of Directors are present at a meeting of the Directors, business of the Bank
may be transacted and matters before the Board approved or disapproved by the
unanimous vote of the Directors present.
SECTION 2.07. COMPENSATION. Each member of the Board of Directors shall receive
such fees for attendance at Board and Board committee meetings and such fees
for service as a Director, irrespective of meeting attendance, as from time to
time are fixed by resolution of the Board; provided, however, that payment
hereunder shall not be made to a Director for meetings attended and/or Board
service which are not for the Bank's sole benefit and which are concurrent and
duplicative with meetings attended or Board service for an affiliate of the
Bank for which the Director receives payment; and provided further that fees
hereunder shall not be paid in the case of any Director in the regular
employment of the Bank or of one of its affiliates. Each member of the Board of
Directors, whether or not such Director is in the regular employment of the
Bank or of one of its affiliates, shall be reimbursed for travel expenses
incident to attendance at Board and Board committee meetings.
SECTION 2.08. EXECUTIVE COMMITTEE. There may be a standing committee of the
Board of Directors known as the Executive Committee which shall possess and
exercise, when the Board is not in session, all the powers of the Board that
may lawfully be delegated. The Executive Committee shall consist of at least
three Board members, one of whom shall be the Chairman of the Board, Chief
Executive Officer or the President. The other members of the
<PAGE>
Executive Committee shall be appointed by the Chairman of the Board, the Chief
Executive Officer, or the President, with the approval of the Board, and who
shall continue as members of the Executive Committee until their successors are
appointed, provided, however, that any member of the Executive Committee may be
removed by the Board upon a majority vote thereof at any regular or special
meeting of the Board. The Chairman, Chief Executive Officer, or President shall
fill any vacancy in the Executive Committee by the appointment of another
Director, subject to the approval of the Board of Directors. The Executive
Committee shall meet at the call of the Chairman, Chief Executive Officer, or
President or any two members thereof at such time or times and place as may be
designated. In the event of the absence of any member or members of the
Executive Committee, the presiding member may appoint a member or members of
the Board to fill the place or places of such absent member or members to serve
during such absence. Two members of the Executive Committee shall constitute a
quorum. When neither the Chairman of the Board, the Chief Executive Officer,
nor President are present, the Executive Committee shall appoint a presiding
officer. The Executive Committee shall report its proceedings and the action
taken by it to the Board of Directors.
SECTION 2.09. OTHER COMMITTEES. The Board of Directors may appoint such special
committees from time to time as are in its judgment necessary in the interest
of the Bank.
ARTICLE III
OFFICERS, MANAGEMENT STAFF AND EMPLOYEES
SECTION 3.01. OFFICERS AND MANAGEMENT STAFF.
(a) The executive officers of the Bank shall include a Chairman of the Board,
Chief Executive Officer, President, Chief Financial Officer, Secretary,
Security Officer, and may include one or more Senior Managing Directors or
Managing Directors. The Chairman of the Board, Chief Executive Officer,
President, any Senior Managing Director, any Managing Director, Chief Financial
Officer, Secretary, and Security Officer shall be elected by the Board. The
Chairman of the Board, Chief Executive Officer, and the President shall be
elected by the Board from their own number. Such officers as the Board shall
elect from their own number shall hold office from the date of their election
as officers until the organization meeting of the Board of Directors following
the next annual meeting of shareholders, provided, however, that such officers
may be relieved of their duties at any time by action of the Board of
Directors, in which event all the powers incident to their office shall
immediately terminate. The Chairman of the Board, Chief Executive Officer, or
the President shall preside at all meetings of shareholders and meetings of the
Board of Directors.
(b) The management staff of the Bank shall include officers elected by the
Board, officers appointed by the Chairman of the Board, the Chief Executive
Officer, the President, any Senior Managing Director, any Managing Director,
the Chief Financial Officer, and such other persons in the employment of the
Bank who, pursuant to authorization by a duly authorized officer of the Bank,
perform management functions and have management responsibilities. Any two or
more offices may be held by the same person except that no person shall hold
the office of Chairman of the Board, Chief Executive Officer and/or President
and at the same time also hold the office of Secretary.
<PAGE>
(c) Except as provided in the case of the elected officers who are members of
the Board, all officers and employees, whether elected or appointed, shall hold
office at the pleasure of the Board. Except as otherwise limited by law or
these By-Laws, the Board assigns to the Chairman of the Board, the Chief
Executive Officer, the President, any Senior Managing Director, any Managing
Director, the Chief Financial Officer, and/or each of their respective
designees the authority to control all personnel, including elected and
appointed officers and employees of the Bank, to employ or direct the
employment of such officers and employees as he or she may deem necessary,
including the fixing of salaries and the dismissal of such officers and
employees at pleasure, and to define and prescribe the duties and
responsibilities of all officers and employees of the Bank, subject to such
further limitations and directions as he or she may from time to time deem
appropriate.
(d) The Chairman of the Board, the Chief Executive Officer, the President, any
Senior Managing Director, any Managing Director, the Chief Financial Officer,
and any other officer of the Bank, to the extent that such officer is
authorized in writing by the Chairman of the Board, the Chief Executive
Officer, the President, any Senior Managing Director, any Managing Director, or
the Chief Financial Officer may appoint persons other than officers who are in
employment of the Bank to serve in management positions and in connection
therewith, the appointing officer may assign such title, salary,
responsibilities and functions as are deemed appropriate, provided, however,
that nothing contained herein shall be construed as placing any limitation on
the authority of the Chairman of the Board, the Chief Executive Officer, the
President, any Senior Managing Director, any Managing Director, or the Chief
Financial Officer as provided in this and other sections of these By-Laws.
(e) The Senior Managing Directors and the Managing Directors of the Bank shall
have general and active authority over the management of the business of the
Bank, shall see that all orders and resolutions of the Board of Directors are
carried into effect, and shall do or cause to be done all things necessary or
proper to carry on the business of the Bank in accordance with provisions of
applicable law and regulations. Each Senior Managing Director and Managing
Director shall perform all duties incident to his or her office and such other
and further duties, as may from time to time be required by the Chief Executive
Officer, the President, the Board of Directors, or the shareholders. The
specification of authority in these By-Laws wherever and to whomever granted
shall not be construed to limit in any manner the general powers of delegation
granted to a Senior Managing Director or a Managing Director in conducting the
business of the Bank. In the absence of a Senior Managing Director or a
Managing Director, such officer as is designated by the Senior Managing
Director or the Managing Director shall be vested with all the powers and
perform all the duties of the Senior Managing Director or the Managing Director
as defined by these By-Laws.
(f) Each Managing Director who is assigned oversight of one or more trust
service offices shall appoint a management committee known as the Investment
Management and Trust Committee consisting of the Managing Director of the trust
service offices and at least three other members who shall be capable and
experienced officers of the Bank appointed from time to time by the Managing
Director and who shall continue as members of the Investment Management and
Trust Committee until their successors are appointed, provided, however, that
any member of the
<PAGE>
Investment Management and Trust Committee may be removed by the Managing
Director as provided in this and other sections of these By-Laws. The Managing
Director shall fill any vacancy in the Investment Management and Trust
Committee by the appointment of another capable and experienced officer of the
Bank. Each Investment Management and Trust Committee shall meet at such date,
time and place as the Managing Director shall fix. In the event of the absence
of any member or members of the Investment Management and Trust Committee, the
Managing Director may, in his or her discretion, appoint another officer of the
Bank to fill the place or places of such absent member or members to serve
during such absence. A majority of each Investment Management and Trust
Committee shall constitute a quorum. Each Investment Management and Trust
Committee shall carry out the policies of the Bank, as adopted by the Board of
Directors, which shall be formulated and executed in accordance with State and
Federal Law, Regulations of the Comptroller of the Currency, and sound
fiduciary principles. In carrying out the policies of the Bank, each Investment
Management and Trust Committee is hereby authorized to establish management
teams whose duties and responsibilities shall be specifically set forth in the
policies of the Bank. Each such management team shall report such proceedings
and the actions taken thereby to the Investment Management and Trust Committee.
Each Managing Director shall then report such proceedings and the actions taken
thereby to the Board of Directors.
SECTION 3.02. POWERS AND DUTIES OF MANAGEMENT STAFF. Pursuant to the fiduciary
powers granted to this Bank under the provisions of Federal Law and Regulations
of the Comptroller of the Currency, the Chairman of the Board, the Chief
Executive Officer, the President, the Senior Managing Directors, the Managing
Directors, the Chief Financial Officer, and those officers so designated and
authorized by the Chairman of the Board, the Chief Executive Officer, the
President, the Senior Managing Directors, the Managing Directors, or the Chief
Financial Officer are authorized for and on behalf of the Bank, and to the
extent permitted by law, to make loans and discounts; to purchase or acquire
drafts, notes, stocks, bonds, and other securities for investment of funds held
by the Bank; to execute and purchase acceptances; to appoint, empower and
direct all necessary agents and attorneys; to sign and give any notice required
to be given; to demand payment and/or to declare due for any default any debt
or obligation due or payable to the Bank upon demand or authorized to be
declared due; to foreclose any mortgages; to exercise any option, privilege or
election to forfeit, terminate, extend or renew any lease; to authorize and
direct any proceedings for the collection of any money or for the enforcement
of any right or obligation; to adjust, settle and compromise all claims of
every kind and description in favor of or against the Bank, and to give
receipts, releases and discharges therefor; to borrow money and in connection
therewith to make, execute and deliver notes, bonds or other evidences of
indebtedness; to pledge or hypothecate any securities or any stocks, bonds,
notes or any property real or personal held or owned by the Bank, or to
rediscount any notes or other obligations held or owned by the Bank, whenever
in his or her judgment it is reasonably necessary for the operation of the
Bank; and in furtherance of and in addition to the powers hereinabove set forth
to do all such acts and to take all such proceedings as in his or her judgment
are necessary and incidental to the operation of the Bank.
SECTION 3.03. SECRETARY. The Secretary or such other officers as may be
designated by the Chief Executive Officer shall have supervision and control of
the records of the Bank and, subject to the direction of the Chief Executive
Officer, shall undertake other duties and functions
<PAGE>
usually performed by a corporate secretary. Other officers may be designated by
the Secretary as Assistant Secretary to perform the duties of the Secretary.
SECTION 3.04. EXECUTION OF DOCUMENTS. Any member of the Bank's management staff
or any employee of the Bank designated as an officer on the Bank's payroll
system is hereby authorized for and on behalf of the Bank to sell, assign,
lease, mortgage, transfer, deliver and convey any real or personal property,
including shares of stock, bonds, notes, certificates of indebtedness
(including the assignment and redemption of registered United States
obligations) and all other forms of intangible property now or hereafter owned
by or standing in the name of the Bank, or its nominee, or held by the Bank as
collateral security, or standing in the name of the Bank, or its nominee, in
any fiduciary capacity or in the name of any principal for whom this Bank may
now or hereafter be acting under a power of attorney or as agent, and to
execute and deliver such partial releases from any discharges or assignments of
mortgages and assignments or surrender of insurance policies, deeds, contracts,
assignments or other papers or documents as may be appropriate in the
circumstances now or hereafter held by the Bank in its own name, in a fiduciary
capacity, or owned by any principal for whom this Bank may now or hereafter be
acting under a power of attorney or as agent; provided, however, that, when
necessary, the signature of any such person shall be attested or witnessed in
each case by another officer of the Bank. Any member of the Bank's management
staff or any employee of the Bank designated as an officer on the Bank's
payroll system is hereby authorized for and on behalf of the Bank to execute
any indemnity and fidelity bonds, trust agreements, proxies or other papers or
documents of like or different character necessary, desirable or incidental to
the appointment of the Bank in any fiduciary capacity, the conduct of its
business in any fiduciary capacity, or the conduct of its other banking
business; to sign and issue checks, drafts, orders for the payment of money and
certificates of deposit; to sign and endorse bills of exchange, to sign and
countersign foreign and domestic letters of credit, to receive and receipt for
payments of principal, interest, dividends, rents, fees and payments of every
kind and description paid to the Bank, to sign receipts for money or other
property acquired by or entrusted to the Bank, to guarantee the genuineness of
signatures on assignments of stocks, bonds or other securities, to sign
certifications of checks, to endorse and deliver checks, drafts, warrants,
bills, notes, certificates of deposit and acceptances in all business
transactions of the Bank; also to foreclose any mortgage, to execute and
deliver receipts for any money or property; also to sign stock certificates for
and on behalf of this Bank as transfer agent or registrar, and to authenticate
bonds, debentures, land or lease trust certificates or other forms of security
issued pursuant to any indenture under which this Bank now or hereafter is
acting as trustee or in any other fiduciary capacity; to execute and deliver
various forms of documents or agreements necessary to effectuate certain
investment strategies for various fiduciary or custody customers of the Bank,
including, without limitation, exchange funds, options, both listed and
over-the-counter, commodities trading, futures trading, hedge funds, limited
partnerships, venture capital funds, swap or collar transactions and other
similar investment vehicles for which the Bank now or in the future may deem
appropriate for investment of fiduciary customers or in which non-fiduciary
customers may direct investment by the Bank.
Without limitation on the foregoing, the Chief Executive Officer, Chairman of
the Board, or President of the Bank shall have the authority from time to time
to appoint officers of the Bank as Vice President for the sole purpose of
executing releases or other documents incidental to the
<PAGE>
conduct of the Bank's business in any fiduciary capacity where required by
state law or the governing document. In addition, other persons in the
employment of the Bank or its affiliates may be authorized by the Chief
Executive Officer, Chairman of the Board, President, Senior Managing Directors,
Managing Directors, or Chief Financial Officer to perform acts and to execute
the documents described in the paragraph above, subject, however, to such
limitations and conditions as are contained in the authorization given to such
person.
SECTION 3.05. PERFORMANCE BOND. All officers and employees of the Bank shall be
bonded for the honest and faithful performance of their duties for such amount
as may be prescribed by the Board of Directors.
ARTICLE IV
STOCKS AND STOCK CERTIFICATES
SECTION 4.01. STOCK CERTIFICATES. The shares of stock of the Bank shall be
evidenced by certificates which shall bear the signature of the Chairman of the
Board, the Chief Executive Officer, or the President (which signature may be
engraved, printed or impressed), and shall be signed manually by the Secretary,
or any other officer appointed by the Chief Executive Officer for that purpose.
In case any such officer who has signed or whose facsimile signature has been
placed upon such certificate shall have ceased to be such officer before such
certificate is issued, it may be issued by the Bank with the same effect as if
such officer had not ceased to be such at the time of its issue. Each such
certificate shall bear the corporate seal of the Bank, shall recite on its face
that stock represented thereby is transferable only upon the books of the Bank
when properly endorsed and shall recite such other information as is required
by law and deemed appropriate by the Board. The corporate seal may be facsimile
engraved or printed.
SECTION 4.02. STOCK ISSUE AND TRANSFER. The shares of stock of the Bank shall
be transferable only upon the stock transfer books of the Bank and, except as
hereinafter provided, no transfer shall be made or new certificates issued
except upon the surrender for cancellation of the certificate or certificates
previously issued therefor. In the case of the loss, theft, or destruction of
any certificate, a new certificate may be issued in place of such certificate
upon the furnishing of an affidavit setting forth the circumstances of such
loss, theft, or destruction and indemnity satisfactory to the Chairman of the
Board, the Chief Executive Officer, or the President. The Board of Directors or
the Chairman of the Board, Chief Executive Officer, or the President may
authorize the issuance of a new certificate therefor without the furnishing of
indemnity. Stock transfer books, in which all transfers of stock shall be
recorded, shall be provided. The stock transfer books may be closed for a
reasonable period and under such conditions as the Board of Directors may at
any time determine, for any meeting of shareholders, the payment of dividends
or any other lawful purpose. In lieu of closing the transfer books, the Board
of Directors may, in its discretion, fix a record date and hour constituting a
reasonable period prior to the day designated for the holding of any meeting of
the shareholders or the day appointed for the payment of any dividend, or for
any other purpose at the time as of which shareholders entitled to notice of
and to vote at any such meeting or to receive such dividend or to be treated as
shareholders for such other purpose shall be determined, and only shareholders
of
<PAGE>
record at such time shall be entitled to notice of or to vote at such meeting
or to receive such dividends or to be treated as shareholders for such other
purpose.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.01. SEAL. The seal of the Bank shall be circular in form with "SEAL"
in the center, and the name "BANK ONE TRUST COMPANY, National Association"
located clockwise around the upper half of the seal.
SECTION 5.02. MINUTE BOOK. The organization papers of this Bank, the Articles
of Association, the returns of judges of elections, the By-Laws and any
amendments thereto, the proceedings of all regular and special meetings of the
shareholders and of the Board of Directors, and reports of the committees of
the Board of Directors shall be recorded in the minute books of the Bank. The
minutes of each such meeting shall be signed by the presiding officer and
attested by the secretary of the meeting.
SECTION 5.03. CORPORATE POWERS. The corporate existence of the Bank shall
continue until terminated in accordance with the laws of the United States. The
purpose of the Bank shall be to carry on the general business of a commercial
bank trust department and to engage in such activities as are necessary,
incident, or related to such business. The Articles of Association of the Bank
shall not be amended, or any other provision added elsewhere in the Articles
expanding the powers of the Bank, without the prior approval of the Comptroller
of the Currency.
SECTION 5.04. AMENDMENT OF BY-LAWS. The By-Laws may be amended, altered or
repealed, at any regular or special meeting of the Board of Directors, by a
vote of a majority of the Directors.
<PAGE>
As amended April 24, 1991 Section 3.01 (Officers and Management Staff)
Section 3.02 (Chief Executive Officer)
Section 3.03 (Powers and Duties of Officers and
Management Staff)
Section 3.05 (Execution of Documents)
As amended January 27, 1995 Section 2.04 (Regular Meetings)
Section 2.05 (Special Meetings)
Section 3.01(f) (Officers and Management Staff)
Section 3.03(e) (Powers and Duties of Officers
and Management Staff)
Section 5.01 (Seal)
Amended and restated in its entirety effective May 1, 1996
As amended August 1, 1996 Section 2.09 (Trust Examining Committee)
Section 2.10 (Other Committees)
As amended October 16, 1997 Section 3.01 (Officers and Management Staff)
Section 3.02 (Powers and Duties of Officers and
Management Staff)
Section 3.04 (Execution of Documents)
As amended January 1, 1998 Section 1.01 (Annual Meeting)
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
April 3, 2000
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of an indenture between Morgan Stanley
Dean Witter & Co. and Bank One Trust Company, National Association, as Trustee,
the undersigned, in accordance with Section 321(b) of the Trust Indenture Act
of 1939, as amended, hereby consents that the reports of examinations of the
undersigned, made by Federal or State authorities authorized to make such
examinations, may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Very truly yours,
Bank One Trust Company, National Association
By: /s/ John R. Prendiville
-----------------------------------------
John R. Prendiville
Senior Counsel
<PAGE>
<TABLE>
EXHIBIT 7
<S> <C> <C> <C>
Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 12/31/99 State #: 391581 FFIEC 032
Address: 100 Broad Street Vendor ID: D Cert #: 21377 Page RC-1
City, State Zip: Columbus, OH 43271 Transit #: 04400003
</TABLE>
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for December 31, 1999
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
<TABLE>
Schedule RC--Balance Sheet Dollar Amounts in Thousands C300
----
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions
(from Schedule RC-A):
RCON
----
a. Noninterest-bearing balances and currency and coin(1)... 0081 123,692 1.a
b. Interest-bearing balances(2)............................ 0071 17,687 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B,
column A)............................................... 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B,
column D)............................................... 1773 5,860 2.b
3. Federal funds sold and securities purchased under
agreements to resell...................................... 1350 364,813 3.
4. Loans and lease financing receivables:
RCON
a. Loans and leases, net of unearned income (from ----
Schedule RC-C).......................................... 2122 58,020 4.a
b. LESS: Allowance for loan and lease losses............... 3123 10 4.b
c. LESS: Allocated transfer risk reserve................... 3128 0 4.c
RCON
d. Loans and leases, net of unearned income, allowance, and ----
reserve (item 4.a minus 4.b and 4.c).................... 2125 58,010 4.d
5. Trading assets (from Schedule RD-D)........................ 3545 0 5.
6. Premises and fixed assets (including capitalized leases)... 2145 22,547 6.
7. Other real estate owned (from Schedule RC-M)............... 2150 0 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)............................ 2130 0 8.
9. Customers' liability to this bank on acceptances
outstanding............................................... 2155 0 9.
10. Intangible assets (from Schedule RC-M)..................... 2143 27,151 10.
11. Other assets (from Schedule RC-F).......................... 2160 141,759 11.
12. Total assets (sum of items 1 through 11)................... 2170 761,519 12.
- ---------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 12/31/99 State #: 391581 FFIEC 032
Address: 100 East Broad Street Vendor ID: D Cert #" 21377 Page RC-2
City, State Zip: Columbus, OH 43271 Transit #: 04400003
</TABLE>
<TABLE>
Schedule RC-Continued Dollar Amounts in
Thousands
---------
LIABILITIES
<S> <C> <C> <C>
13. Deposits: RCON
a. In domestic offices (sum of totals of columns A and C ----
from Schedule RC-E, part 1)............................. 2200 589,846 13.a
(1) Noninterest-bearing(1).............................. 6631 517,140 13.a1
(2) Interest-bearing.................................... 6636 72,706 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)......................
(1) Noninterest bearing.................................
(2) Interest-bearing....................................
14. Federal funds purchased and securities sold under
agreements to repurchase: RCFD 2800 0 14
15. a. Demand notes issued to the U.S. Treasury................ RCON 2840 0 15.a
b. Trading Liabilities(from Schedule RC-D)................. RCFD 3548 0 15.b
16. Other borrowed money: RCON
----
a. With original maturity of one year or less.............. 2332 0 16.a
b. With original maturity of more than one year........... A547 0 16.b
c. With original maturity of more than three years......... A548 0 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding.... 2920 0 18.
19. Subordinated notes and debentures.......................... 3200 0 19.
20. Other liabilities (from Schedule RC-G)..................... 2930 63,244 20.
21. Total liabilities (sum of items 13 through 20)............. 2948 653,090 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.............. 3838 0 23.
24. Common stock............................................... 3230 800 24.
25. Surplus (exclude all surplus related to preferred stock)... 3839 45,157 25.
26. a. Undivided profits and capital reserves.................. 3632 62,458 26.a
b. Net unrealized holding gains (losses) on
available-for-sale securities........................ 8434 14 26.b
c. Accumulated net gains (losses) on cash flow hedges...... 4336 0 26.c
27. Cumulative foreign currency translation adjustments........
28. Total equity capital (sum of items 23 through 27).......... 3210 108,429 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)...................... 3300 761,519 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best
describes the most
2. comprehensive level of auditing work performed for the bank by independent Number
external auditors as of any date during 1996............................... RCFD 6724.... N/A M.1.
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards by a
certified public accounting firm (may be required by
state chartering authority)
- ---------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
</TABLE>
